
AN 



Copy 1 



ANALYSIS AND EXPOSITION 



CONSTITUTION 



STATE OF WISCONSIN, 



THE * N*CED i - IX 

SERALLY. 



By A. O. Wright. 



MADISON. WIS.: 

Atwood & Culver, Publishers. 

1873- 



5 LIBRARY OF CONGRESS.' 

f. ■ rS^ms | 

\ UNITED STATES OF AMERICA, f 

$3 ^<^^>^^^^-%>^^^^^<^^<^^ ^^jp] 



AN 



ANALYSIS AND EXPOSITION 



OF THE 



CONSTITUTION OF THE STATE OF WISCONSIN, 



DESIGNED 



FOR THE USE OF TEACHERS, ADVANCED CLASSES IN SCHOOLS 
AND CITIZENS GENERALLY. 



BY A. O. WRIGHT. 



•' That which rontritutcs most to preserve the State is to educate children with reference to the 
State; for the most useful laws, and most approved by every statesman, will be of n* service, if 
the citizens are not accustomed to and brought up i-i the principles ot th« Constitution "—ARISTO- 
TLE. Politics, B^ok V, ch. 9. 

MADISON, WIS 
ATWOOD & CULVER, PUBLISHERS. 

1873- 






Entered according to the act of Congress, In the year 1873, 

BY ATWO.OD & CULVER, 

in the office of the Librarian of Congress, at Washington, D. C. 



ATWOOD & CULVER, PRINTERS AND STEREOTYPERS, 
MADISON WIS 



PREFACE. 



The reason for the existence of this little book is to be found 
in the amendment to our school law, enacted by the legislature 
of 1871, which requires the constitution of the United States 
and of the state of Wisconsin to be taught in our common 
schools, and studied by our teachers in order to receive cer- 
tificates. 

'The object of this law is to acquaint our citizens with the 
principles of our government and the machinery used in carry- 
ing it on. The only way in which this knowledge of our civil 
government can be enforced, by law, is through our common 
schools and their teachers. Directly, this law affects only the 
teachers and pupils in our public schools; but, indirectly, it 
reaches a great number of parents and friends whose attention 
is called to the subject through them. 

The author hopes that this little work will supply the demand 
thus created for a short and simple exposition of the constitu- 
tion of this state, which shall unfold the principles and philos- 
ophy of our government, as well as explain the legal phrase- 
ology of the constitution, and which shall be adapted for school 
use, while at the same time it may be a convenient hand book 
of study and reference for those citizens who care to study the 
theory of their government. 

For the benefit of students an analysis of the whole constitu- 
tion, and of each article is given. For the benefit of teachers 
some suggestions upon the methods of teaching the constitution 
are given in an appendix. For the benefit of citizens, abstracts 
of those decisions of the supreme court which interpret the 
constitution, are given in foot notes. These abstracts are usually 



4 Preface. 

quoted from Simmons' Digest, but every reference has been car- 
ried back to the original reports of the supreme court, and 
wherever Simmons' abstract did not answer the purpose of this 
work a new one has been made. Every effort has been made to 
secure absolute accuracy in the references to these decisions. In 
order to give the text of the constitution as it now is, the 
amendments are inserted in their proper places, while the sec- 
tions amended are given in the original form in the foot notes ; 
and those parts of the constitution which have expired by their 
own limitation or which are indirectly abolished by amend- 
ments are enclosed in brackets, except in the case of the first 
legislative apportionment, given in article XIV, section 12, 
which, because of its length, is omitted. 

In the preparation of this work a prime object has been to 
make it concise and, therefore, cheap in price, so as to bring it 
within the means of every voter and of every teacher and ad- 
vanced pupil in our schools. It has not been possible within 
these limits, therefore, to answer every, collateral question that 
could be asked about matters referred to in this constitution. 
Readers of this work are referred- to the Legislative Manual, to 
the statutes of the state or to any good lawyer for answers to 
such questions. 

The thanks of the author are due to Gen. Samuel Fallows, 
state superintendent of public instruction, for the first sugges- 
tion of the plan of this work, and for much valuable assistance 
and counsel since. His thanks- are also due to H. H. Hatch, 
Esq., of New Lisbon, one of the soundest lawyers in this state, 
for much valuable help, especially upon articles I and VII, 
where a clear knowledge of legal terms and methods is most 
needed. 



TABLE OF CONTEXTS. 



Page. 
PRELIMINARY MATTER 3-7 

Preface 3 

Table of Contents 5 

General Analysis of the Constitution of Wisconsin 7 

ANALYSIS AND EXPOSITION 9-164 

Preamble 9 

Art. I. Declaration of Rights 12 

II. Boundaries 

III. Suffrage 46 

IV. Legislative 54 

V. Executive 80 

VI. Administrative 

VII. Judiciary 97 

VIII. Finance 119 

IX. Eminent Domain and Property of the State 125 

X. Education 130 

XI. Corporations 136 

XII. Amendments 144 

XIII. Miscellaneous Provisions 147 

XIV. Schedule 154 

APPENDICES 165-175 

Suggestions to Teachers 165 

Questions for Oral Teaching 170 

Topics fob Collateral Sttjdt 174 



GENERAL ANALYSIS 



OP THE 



CONSTITUTION OF WISCONSIN/ 



THE GOVERNMENT OF WISCONSIN. 

1. Preamble, Art. 

2. What the Governing is For (Declaration of Rights), I 

3. What is to be Governed (Jurisdiction), II and IX 

Who represent the people (the voters), - - III 

Legislative, - IV 



4. How it is to be Gov- 
erned (Forms and 
Powers of Govern- 
ment). 



Who represent the vot- Executive, - - V 

ers (Representative < Administrative, VI 

Powers). j Judicial, - -VII 

Educational, - X 

Financial, - VIII 

(Special limitations). -( Corporations. - XI 

[ Miscellaneous, XIII 

5. How the Government may be Changed (Amendments), - - XII 

6. How the Change from Territory to State shall be Made 

(Schedule), XIV 



CONSTITUTION OF WISCONSIN. 



PREAMBLE. 



TVe, ] the people of Wisconsin, -grateful to Almighty God for our 
freedom, Hn order to secure its blessings, 4 form a more perfect 
government, Mnsure domestic tranquillity and "promote the 
general welfare, do establish this constitution. 

This preamble is plainly taken from the preamble to 
the United States constitution, with some changes. 
Notice the order in which the objects of the constitu- 
tion are given: First freedom, then govemmemt, and 
then the two great ends of government, domestic tran- 
quillity and the general welfare. 

'The people are the source of all political power in 
Wisconsin, and "the people of Wisconsin" establish 
this constitution. Thus the very first words of the con- 
stitution show the republican form of government in 
this state, which is guaranteed to all the states by the 
United States constitution. This constitution is not 
granted by a monarch who can take it away again when 
he pleases; nor is it established by a few nobles for 
their own benefit. Here, in America, we are all sover- 
eigns, and make laws and constitutions to suit ourselves. 
And, therefore, the preamble states that it is the people 
of Wisconsin who make this constitution. 

*It is very proper for the people of the state in fram- 
ing the constitution to express their thanks to God. 
This does not establish any religion, for this constitu- 



io Constitution of Wisconsin. 

tion (Art. I, sects. 18 and 19) guarantees complete free- 
dom of religion. But it does mean this: That the peo- 
ple of Wisconsin believe in God and worship Him; and 
believe, moreover, that they owe their freedom to Him. 

3 The first and greatest object of Americans always is 
" to secure the blessings of freedom." And in accord- 
ance with this, the first article of our state constitution 
is a declaration of rights, intended to secure the bless- 
ings of freedom to every person in Wisconsin, citizen or 
foreigner, of whatever color, race, age or sex. And 
then the constitution goes on to arrange the machinery 
of government, so as to " insure domestic tranquillity 
and promote the general welfare." 

4 To secure the blessings of freedom, we need a settled 
government with good laws, justly carried out. It is 
not enough to be free ; we must be protected in our 
freedom from being oppressed by any one else ; and 
this can only be done by a regular and a just govern- 
ment. 

Before this constitution was adopted and the state 
admitted to the union, the government of Wisconsin 
was territorial. It was a territory of the United States, 
and it was governed by the United States. The gov- 
ernor and judges of the territory were appointed by the 
President, and the laws passed by the territorial legis- 
lature could be overruled at any time by Congress, and, 
indeed, Congress could, if it pleased, have abolished the 
legislature altogether, and itself made laws for the ter- 
ritory. But when this constitution was adopted and 
Congress had made the territory of Wisconsin a state, 
with this constitution as its fundamental law, " a more 
perfect government " was formed. Within the limits fixed 



Constitution of Wisconsin. n 

by the United States constitution, the people of the state 
can now manage their government to suit themselves. 
The state government is "a more perfect government" 
than the territorial government was. 

6 A good government will " insure the domestic tran- 
quility " by preventing riots and insurrection, by re- 
straining crimes of every kind, and by defending the 
state against war or invasion. And these things the 
constitution provides for. 

e Besides these, a good government will " promote the 
general welfare " by promoting education, by fostering 
agriculture, manufactures and commerce, and by secur- 
ing to every man, woman and child in the state, a fair 
chance in life. These things the constitution provides 
for either directly or indirectly. And thus the constitu- 
tion fulfills the objects set forth in this preamble, as we 
shall see by the farther study of it. 



12 



Constitution of Wisconsin. 



ARTICLE I. 



DECLARATION OF RIGHTS. 

Sec. 

1. General Principle — Government is established to secure personal 

freedom 1 

a. Slavery prohibited, 2 

b. Freedom of speech guaranteed, 3 

c. Freedom' of assembly and petition guaranteed, - 4 

d. Legal justice guaranteed— 
1. Trial by jury guaranteed, - - 5 

tv* /i^f^n/i 2 - Excessive bail and punishment 

ants i forbidden, 

anib, 3< A fair trial guarantee( j i . 

t 4. Fair preliminaries guaranteed, - 
To prosecutors, 

1. Treason defined, - 

2. Rights of search limited, 

3. Bills of attainder and corruption! 
of blood forbidden, - - - ! 

2. Sticial I 4. Ex post facto laws forbidden. 
Applications. • 5. Contracts not to be impaired, - J 

6. Private property respected by the 

Powers of State, -....- 13 

Govern- 7. Feudal tenures prohibited, - 14 

ment a- J 8. No distinction against resident 

gainst in- 1 aliens, 15 

dividual s [Freedom of per- 

limited, q -n phtnrQ , ri<yllt « j son, - - 16 

y. Debtors rights -j Exemptiou f 

L property, - 17 
( For ihdivid- 

10. Religious Freedom -j uals, - 18 
( For officers, 19 

11. Military always subordinate, - 20 

12. Writs of error guaranteed, 21 

3. How Freedom is to be Maintained, 22 



SECTION I. 

! A11 men are born equally free and independent, and 2 have cer- 
tain inherent rights ; among these are life, liberty, and the pur- 
suit of happiness. 3 To secure these rights, governments are in- 
stituted among men, deriving their just powers from the consent 
of the governed.* 

1 All men are born equally free and independent; but 
freedom and independence do not consist in having a 



* This section is taken with very slight change, from the Declaration of 
Independence. Compare the following extract from that document with 
the section of the constitution of Wisconsin, given above: 

" We hold these truths to be self-evident, that all men are created equal, 
that they are endowed by their Creator with certain inalienable rights, that 
among these are life, liberty and the pursuit of happiness, that to secure 
these rights, governments are instituted among men, deriving their just 
powers from the consent of the governed.' 11 



Constitution of Wisconsin. 13 

voice in the government, but only in being justly ruled 
and protected by a government of our own choice. 

2 There are two kinds of rights, inherent rights and 
conventional rights. Inherent rights are those rights 
that belong to everybody everywhere, and which it 
is the business of the law always to secure. Con- 
ventional rights are those that are given by law or 
by custom that has the force of law; and since they are 
given by law, they can be repealed by law. Inherent 
rights can be taken away by law, unjustly; for laws are 
not always just. Conventional rights may justly be 
taken away by law; for what the law has given, the law 
can take away. 

For instance, the right to vote is a conventional right. 
The constitution, for various reasons, forbids certain per- 
sons to vote — women, children, persons who have come 
into the state within a year, wild Indians, convicts, United 
States soldiers and sailors. These persons cannot com- 
plain that the principle stated in this section has been 
violated; for the right to vote is not an inherent, but a con- 
ventional right. The people of the state, should they see 
fit, can extend the right to vote to any or all of these 
classes; or, if they see fit, can still further restrict the 
right to vote by shutting out other classes, and no one 
can reasonably complain. But if, because of the re- 
striction or the extension of the suffrage, the inherent 
rights of any class are put in danger, they can right- 
fully complain; not because of that restriction or exten- 
sion of the suffrage, but because of the consequences 
that flow from it in violation of their inherent rights. 

Again, the right to hold property, subject to a rea- 
sonable taxation from the state, is an inherent right. 



14 Constitution of Wisconsin. 

The government has no right to take any one's property 
from him without paying him for it, or to let any one 
else take it from him at all without his consent. A man 
has always the right to his earnings ; for it is with them 
that he buys the means of life and happiness, and it is 
the business of government to protect him in that right. 
But nobody has an inherent right to some particular 
kind of property ; like land, for instance. The owner- 
ship of land is only a conventional right, and, therefore, 
the state reserves to itself, in Article IX, the right of " em- 
inent domain," and will take a man's land whenever it is 
needed for a street or any other public purpose, whether 
he is willing to let it go or not. But, though the state 
can thus justly break through his conventional right to 
hold land, it cannot justly take away his inherent right 
to his property, and, therefore, the Constitution pro- 
vides (I, 13) that whenever the state takes away any- 
one's land, it must pay him a fair price for it. 

These examples will show the distinction between in- 
herent and conventional rights, which must be kept 
carefully in mind all through this article. The object 
of this Declaration of Rights, with which our State 
Constitution so nobly begins, is to secure the inherent 
rights of every person who comes within the jurisdic- 
tion of the State. The line between inherent and con- 
ventional rights is very carefully and ably dra;vn. And 
it is to secure these rights by some power stronger than 
a bit of printed paper that the machinery of the state 
government was established in the rest of the consti- 
tution. 

3 The end of all government is to secure us in our indi- 
vidual freedom. A government that does not do this, is 



Constitution of Wisconsin. 15 

not worth having. The first duty of every government, 
whether it is that of a king, of a few nobles, or of the 
people, is to secure the subjects or citizens of that gov- 
ernment in those inherent rights, without which they 
cannot be truly free. The right to life, to personal lib- 
erty, to have a fair chance in life, and to seek our hap- 
piness as we please, so long as we do not infringe on the 
rights of any one else, are inherent rights. To secure 
them is the object of all government. There is no 
peculiar sacredness in any institutions of government. 
They are but the means by which the end of good gov- 
ernment is attained. Any form of government needs 
the consent of those who are governed, and, if it becomes 
oppressive, they have a right to change it. Acting on 
this principle, expressed in the Declaration of Independ- 
ence," the founders of American liberty revolted from 
the English government and established one of tleir 
own. And should the government of this State ever 
become oppressive and unjust, the people of the State 
will, doubtless, change it — peaceably if they can, forci- 
bly if they must. 

SECTION II. 

1 There shall be neither slavery nor involuntary servitude in 
this state, -other than for the punishment for crime, whereof the 

party shall have been duly convicted. 

"When the state constitution was adopted, African 
slavery was allowed in many states of our union, and it 
was, therefore, necessary for the state of Wisconsin to 

*"That to secure these rights governments are instituted among: men, 
deriving their just powers from the consent of the governed; and that when- 
ever any form of government becomes destructive" of these ends, it is the 
right of the people to liter or abolish it. and to institute a new government, 
laying its foundation on such principles, and organizing its powers in such 
form as to them shall seem most likely to effect their safety and happiness." 



1 6 Constitution of Wisconsin. 

put itself on one side or the other of this question. 
This state prohibited slavery by this section. This pro- 
vision in our state constitution is now made needless by 
the thirteenth amendment to the United States constitu- 
tion, which prohibits slavery everywhere in the United 
States, and, of course, in Wisconsin as well as elsewhere ; 
so that now, even if the people of Wisconsin should repeal 
this section, that would not bring slavery here*. 

Slavery violates the inherent right to liberty and the 
pursuit of happiness, and is, therefore, prohibited justly 
and consistently with section I. of this article. 

2 A person may be shut up in the state's prison, and 
thus have his liberty taken away, whenever he shows 
that he is a dangerous character by doing some crime. 
His right to liberty and the pursuit of happiness is taken 
away from him for these reasons : to stop him for a time 
from infringing on other people's rights, to reform him, 
if possible, and to prevent others from committing like 
crimes, by fear of a like penalty. 

SECTION III. 

Every person may freely speak, write and publish his sen- 
timents on all subjects, 2 being responsible for the abuse of that 
right, and no laws shall be passed to restrain or abridge the 
liberty of speech or of the press. 8 In all criminal prosecutions 
or indictments for libel, the truth may be given in evidence ; 
and if it shall appear to the jury that the matter charged as 
libelous be true, and was published with good motives and for 
justifiable ends, the party shall be acquitted, 4 and the jury shall 
have the right to determine the law and the fact. 

*Next to the right to life and to liberty of body, is the 
liberty of speech. In most countries it has been thought 
that it is not safe to let people speak or write what they 

*The wording of the thirteenth amendment to the U. S. constitution is 
plainly taken from this section and other similar sections in the constitu- 
tions of other states, and from the Ordinance of 1787. 



Constitution of Wisconsin, 17 

please. Bin in the United States the people govern, 
and, therefore, we are not afraid to allow free speech. 
In Wisconsin, as in the rest of our country, everybody 
can speak or write or print whatever he pleases, with one 
exception, named in this section. 

"We have found out in America that the truth will 
take care of itself, if we only let it alone and give it a 
fair chance; and that the more we try to help the truth 
by law, the more we really hurt it. Freedom is the 
best atmosphere for truth to live in. Tennyson's words 
in praise of England are just as true of America: 

" It is the land that freemen till, 

That sober-suited Freedom chose; 
The land where, girt with friends or foes, 
A man may speak the thing lie will; 

"Where faction seldom <rather< head; 
But by degrees t<» fufinesfl wrought, 
The strength of some diffusive thought 
Hath time and space to work and spread/' 
1 
The liberty of speech is limited by the rights of other 

people. If we were free to say anything we chose, we 

might harm other people very greatly. Therefore, 

although we may speak our minds, we must not do it so 

as to injure any one's reputation.* This is the rule of 

the English common law, which would be our own law 

on the subject, were it not for the rest of this section, as 

the common law is adopted by this constitution (XIV, 13). 

3 Under the common law, the rule was M the greater 

the truth, the greater the libel." 

*" A libel is a malicious publication, either by printing or writing, or by 
signs or pictures, which accuses a person of a crime, or blackens his charac- 
ter, or tends to expose him to public ridicule, contempt or hatred." i,Sini- 
mons' Digest, p. 481. Wis. Reports, vol. iv.. p. 231.) 

"An action for libel may be sustained for words published, which tend to 
bring the plaintiff into public hatred, contempt or ridicule, even though tha 
same words spoken would not have been actionable/' (Simmons' Digest, p. 
431. Wis. Reports, vol. ix. p. 540.) 

B 



1 8 Constitution of Wisconsin. 

But under this section of our constitution, any one 
may tell that which will injure the reputation of an- 
other, on certain conditions: First, it must be true.* 
Second, the one who tells it must tell it with good mo- 
tives — that is, not maliciously or spitefully. Third, he 
must tell it for justifiable ends, that is, not for the sake 
of hurting some one's reputation, but to do some good. 

Under this provision of our constitution, an editor 
may warn his readers against swindlers by name, or 
publish the names and actions of any wrongdoers; any one 
may tell a District Board that a certain teacher is unfit 
to teach, or tell a merchant that his clerk is stealing 
from the money-drawer, or publish charges against pub- 
lic officers, and so on through an endless variety of cases. 

4 Usually, the judge determines the law, and the jury 
the facts in the case; but in libel suits, under this sec- 
tion, the jury decide everything — the fact whether the 
thing charged was actually said, or written, or printed, 
and the law whether the thing charged is a libel within 
the meaning of the law. By this it is not meant that 
the judge has nothing to say about the law; he instructs 
the jury as to what the law is, and then the jury decide 
for themselves. 

SECTION IV. 

The right of the people peaceably to assemble to consult for 
the common good, and 2 to petition" the government or any de- 
partment thereof, shall never be abridged. 

*"ln order to justify in such a case, it is not sufficient to show that the 
libelous matter was previously published by a third person, and that the de- 
fendant, at the time he published it, disclosed the name of such person, and 
believed all its statements to be true; but he must aver and prove that the 
plaintiff' was actually guilty of the matters reported to have been charged 
against him, just as he would be required to do if he had charged such plaintiff 
directlv with actual guilt." [Simmons 1 Digest, p. 481, Wis. Reports, vol. 
xiv. p. 668. ] 



Constitution of Wiscoru 19 

'In many countries, the government is afraid to let 
the people have political meetings or get up petitions for 
the redress of grievances. Here, any number of people 
may come together in any sort of societies, religious, 
social or political, or even in treasonable conspiracies, 
and, so long as as they behave themselves and do not 
hurt anybody or make any great disturbance, they may 
express themselves in public meetings by speeches and 
resolutions as they choose. 

2 There are very few countries in which the govern- 
ment is so despotic that it refuses to receive petitions 
and to hear the complaints of its subjects or citizens. 
And ours being a free government, of course gives this 
right to its citizens. If any person or persons wish 
to have the laws changed in any way, they have a 
right to petition the legislature for that change. The 
legislature must receive and listen to the petition, and 
then it may make the change in the laws, or not, as the 
members may see fit. So also with city councils and 
county, village, town and district boards. On all 
things that are under their care, they nn/st receive 
and listen to all petitions that anybody chooses to send 
them; and then they may do as they please about acting 
on them. So, also, for anything that is in charge of any 
executive or judicial officer. The Governor must re- 
ceive all petitions for pardon, but he can do as he chooses 
about granting the pardon. 

SECTION V 

The right of trial by jury shall remain inviolate: -and shall 
extend to all cases' at law, without regard to the amount in con- 
troversy; 3 but a jury trial may be waived by the parties in all 
cases, iri the manner prescribed by law. 



20 Constitution of Wisconsin. 

ir Trial by jury is an ancient English custom that was 
meant to secure fair trials, so that the decision should 
not depend upon the judge alone, but also upon a num- 
ber of unprejudiced citizens. With the rest of the 
English common law, trial by jury was brought over to 
this country by the English colonists, and has been 
adopted in every state in our Union. The constitution 
therefore says that the right of trial by jury shall remain 
inviolate.* 

A jury generally consists of twelve persons chosen in 
such a way that they shall be impartial.f In suits be- 
fore a justice of the peace, the number is usually six. 
In any verdict of a jury, all must agree. 

2 Under the United States constitution, trial by jury is 
guaranteed in all criminal cases (III, 2) and in all civil suits 
where the value in controversy shall exceed twenty dol- 
lars (Amendment VII.). Under this section the right 
of trial by jury is extended to all cases at law. Equity 
cases are decided by the judge alone.J 

*"The provision in our state constitution (I. 5), that ; the right of trial by- 
jury shall remain inviolate, 1 refers to that right as it then existed, and 
means that it shall remain as fall and perfect alter the adoption of the con- 
stitution as it was at the time of its adoption. 1 ' (Simmons 1 Digest, p. 446; 
Wis. Reports, Vol. i., p. 401; Vol. ii., p. 22; Vol. vi., p. 503; Vol. xvi., 
p. 461) 

t" The common-law writers applied the term ' trial by jury ' only to a trial 
by a jury of twelve men, and that was the legal number of jurors for the trial 
of all issues of fact in all courts of record in Wisconsin, at the time of the 
adoption of the constitution, except in cases where the parties consented to 
a different number: and the right to a trial by a jury of twelve is the right 
preserved and secured by the constitution. 11 (Simmons 1 Digest, p. 447; 
Wis. Reports, Vol. ii., p. 22; Vol. iii., p. 219. 

The "courts of record 11 now in existence in this state are the supreme 
and circuit courts and the county courts, so far as they have jurisdiction of 
" cases at law. i; The courts of justices of the peace are not courts of record. 

" An alien who has declared his intention to become a citizen, but has never 
been fully naturalized so as to be a citizen of the United States, is not a 
competent juror. 11 (Simmons 1 Digest, p. 446: Wis. Reports, Vol. v., p. 324: 
Vol. xvii., p. 674.) 

t u The right of trial by jury does not extend to equity cases, in which by 
the law and practice existing at the time the constitution was adopted, the 

Sarties were not as a matter of right entitled to a jury trial. 11 (Simmons' 
igest, p. 447; Wis. Reports, Vol. xiv., p. 461.) 



Constitution of Wi 21 

: A jury trial may be waived by a criminal when he 
pleads "guilty" in open court. There is no need of a 
jury to establish his guilt, since he has himself confessed 
it in a regular and lawful way. In criminal cases, the 
jury can determine only the fact, and that is determined 
when the plea of " guilty" is put in, and therefore no 
jury is needed to determine it. 

In civil suits, a jury trial may be waived where both 
parties agree to it. In cases brought before a justice of 
the peace, the presumption is that a jury will not be 
wished, and the case will be tried without one unless 
either party call for a jury. In that cue . call can- 

not be denied, under this section of the constitution. 
In civil suits before a judge, the presumption is that a 
jury is wished, and the case will be tried before a jury 
unless both parties agree to waive it. 

SECTION VI. 

Excessive bail shall not be required, nor -shall excessive fines 
be imposed, nor 3 cruel and unusual punishment inflicted. 

1 Bail is the security given that a person arrested fur 
any offense will appear in court and stand his trial when 
the time comes. When no bail is given, the person 
charged with the offense will be kept in jail till his trial 
comes off; not to punish him, for that is unlawful, under 
section 2; for he has not yet been " duly oonvicted n of 
any crime, but to make sure that he will be on hand to 
be tried. Should a justice of the peace ask too great 
bail, the case can be carried before a circuit or countv 
judge or a court commissioner, (VII, 23,) on a writ of 

*This is copied, word for word, from the United Stare:? Constitution, 
(Amendment VIII) with two txiiling exceptions that do not change the sense. 



22 Constitution of Wisconsin. 

habeas corpus, and the bail be reduced by him, should 
he think it is excessive. If a circuit judge asks too great 
bail, the case would be carried in the same way before 
the supreme court. 

2 Fines and punishments are prescribed by law for each 
offense. The law prescribes the greatest and the least 
fine or other punishment, and the court must not impose 
a greater punishment than the greatest, or a less one than 
the least prescribed by law. If the law, itself, should 
fix too severe a penalty, the judge could decide that the 
law is unconstitutional, and refuse to punish the offender 
so heavily. No such case, however, has yet arisen in 
this state. 

3 Cruel and unusual punishments are understood to 
mean such punishments as whipping, branding with a 
hot iron, maiming, torturing, burning at the stake, break- 
ing on the wheel, drawing and quartering, and the like. 
These were, until a century or two ago, inflicted every- 
where; but have now been abolished in all civilized 
countries. 

SECTION VII. 

In all criminal prosecutions, the accused shall enjoy the 
right ho be heard by himself and counsel, to demand the nature 
and cause of the accusation against him, 3 to meet the witnessess 
face to face ; 4 to have compulsory process to compel the attend- 
ance of witnesses in his behalf; and in prosecutions by indict- 
ment or information, to a 5 speedy 6 public trial 7 by an impartial 
jury of the county or district wherein the offense shall have been 
committed ; which county or district shall have been previously 
ascertained by law. 

This section is like Amendment VI to the United 
States Constitution. The object is the same in both — 
to secure a fair trial to accused persons; but the partic- 
ular means of doing that, though the same in both, are 



Constitution of Wiscon 23 

arranged in a different order. The following is an anal- 
ysis of either: 

1. By knowing of what thev are accused. 

f 1. Speedy, 

8 Rv havincr a I *■ Public, 

trial * *■ By an impartial jury. 

Accused per- y 4. In the district where the offense 

sons shall uave J [ was committed. 

A fair trial. f 1. By cross-examining the oppos- 

3. By having fair j UBgwitneM 

testimony, ] 2. By subpoenaing their own wit- 

L 4. By having heard in person or by counsel. 

*Every person has a right to be his own lawyer if he 
chooses. But most persons will always prefer to have a 
lawyer to carry on the case for them, who is skilled in 
the technicalities of law, who knows ho.\ things are 
done in a court-room, and who can talk. As the law 
used to be in England, an accused person was not allowed 
a lawyer, while the state had the best lawyers to plead 
the case against him. 

This section of the constitution prevents any such in- 
justice. Every accused person can have a lawyer if he 
chooses. If he is too poor to furnish one himself, the 
judge appoints one for him, who is paid by the county 
or state. And every accused person has also the right 
to speak for himself, if he chooses, after the lawyers are 
through. 

2 An accused person always has a right to see the in- 
dictment against him, and to know for what offense he 
is to be tried, so that he may be prepared to defend 
himself as w T ell he can ; and, if he is innocent, so that 
he can prove his innocence. 

3 He has the right to meet the witnesses face to face, 
so that he or his lawyer may cross-examine them to see 
whether thev tell the truth or not. 



24 Constitution of Wisconsin. 

4 He may subpoena witnesses for himself, as the state 
can against him, so that if any one knows anything 
about a crime, he may be compelled to come into court 
and testify, so that the truth may be got at as near as 
may be. 

5 The trial for petty offenses, before a justice of the 
peace, comes as soon as possible. For graver crimes, 
the trial comes off at the next term of the circuit court, 
in the county, unless there is some good reason for put- 
ting it off. 

Trials ar& always public, and any one can be pres- 
ent who pleases. It is more likely that justice will be 
done in this way than if the trials were held privately. 

7 An impartial jury is secured by the names of jurors 
being drawn by lot from lists prepared some time be- 
forehand. Then, each party to a sait or trial has the 
right to challenge a certain number of jurors perempto- 
rily, and any number for cause. That is, either party 
may have so many persons stricken off the jury without 
giving any reason for it; and either party may have as 
many more persons stricken off the jury as are disquali- 
fied to act as jurors under the laws. When a person is 
tried for an offense punishable by imprisonment for life, 
he is entitled to twenty-four peremptory challenges, and 
the prosecuting attorney to six. In other criminal 
cases, the accused is entitled to four peremptory chal- 
lenges, and the prosecuting attorney to the same num- 
ber. In civil cases, each party is entitled to three 
peremptory challenges. Challenges for cause may be 
for a variety of reasons; but the main cause is that the 
juror is prejudiced or has formed an opinion upon the 
case. 



Constitution of Wisconsin. 25 

SECTION VIII. 

1 No person shall be held to answer for criminal offense without 
due process of law, 2 and no person, for the same offense, shall he 
put twice in jeopardy of punishment, :i nor shall be compelled in 
any criminal case to be a witness against himself. 4 A11 persons 
shall before conviction be bailable by sufficient sureties, except 
for capital offenses when the proof is evident or the presumption 
great; 5 and the privilege of the writ of habeas corpus tmaU not 
be suspended unless when in cases of rebellion or invasion the 
public safety may require it * 

uc Due process of law " now means, either a prelimin- 
ary examination before a justice of the peace, or inform- 
ation laid before the district attorney. The object of 
this, as of the old way of indictment by a grand jury, is 
to prevent evil-disposed persons annoying innocent peo- 
ple with frivolous or groundless accusations. No person 
can be held to answer for a criminal charge, unless it 
can be shown that there is probable reason to suppose 
that he is guilty. If it were not so, an enemy might 
trump up charges against any one of us, without any 
proof, and hurt our reputation, and put us to a great 
deal of expense and trouble, all for nothing. 

In time of war, martial law takes the place of civil law 
for all soldiers and sailors, and all the people w T ho live 
where the war is going on. When nations are fighting, 
they cannot stop for the slow justice of peace. In time 

*This section was amended at the general election. Nov. 18. 1870, so as to 
abolish the grand jury system. Belore it was amended it read as follows, 
pntting the words in italics below, in the place of those in italics above: 

" No 'person shall be held to answer for a criminal offense, unless on the 
presentment or indictment of a grand jury, except in cases of impeachment, 
or in cases cognizable by justices of the peace, or arising in the army or navy, 
or in the militia ivlten in actual service in time of war or public danger; 
and no person for the same offense shall be put twice in jeopardy of punish- 
ment nor shall be compelled in any criminal case to be a witness against 
himself. All persons shall before conviction be bailable by sufficient sure- 
ties, except for capital offenses when the proof is evident or the presumption 
great ; and the privileges of the writ of h abacs corpus shall not be suspended 
unless when, in cases of rebellion or invasion, the public safety may require.*'' 

As this section originally read, it was taken, with some slight changes, 
from the U. S. Constitution. [Amendment V, and Art. I, Sec. y, Clause^ 2.] 



26 Constitution of Wisconsin. 

of peace, soldiers and sailors can be punished by the 
courts for all oifenses against the laws; and also by their 
officers or by court martial, for all offenses against the 
army regulations. In such cases, martial or military law 
is considered " due process of law." 

2 No person can be tried twice for the same offense; 
but, if the jury disagree, he can be tried before a new 
jury. That is not another trial, but the same one con- 
tinued. Or, the case may be carried to a higher court 
on an appeal, or a writ of certiorari or of error. In that 
case, too, it is not a new trial, but the same trial con- 
tinued; though it is often called, improperly, a new 
trial.* 

3 It is the custom in most countries to make accused 
persons testify against themselves, and, formerly, when 
the accused did not answer the questions as the judge 
wished him to do, he could be tortured until he confess- 
ed all that he had done, and a great deal that he had not 
done. This injustice is prevented by this section. An 
accused person may plead guilty, if he chooses, and con- 
fess to as much as he wishes to, of the charge against 
him; but he is not compelled to say anything unless he 
wishes to. 

Under this section, also, a witness cannot be forced to 
answer any question which would criminate himself. 

4 For a definition of bail, see the comments on section 
6 of this article. 

Capital offenses are those which are punishable with 

*A person charsed with crime is? not put twice in jeopardy by a new trial, 
when the jury fails to agree, or when a nolle prosequi!* entered on an indict- 
ment, (Wis. Reports, Vol. iv, p. 400), or when a conviction has been vet 
aside and a new trial granted on his own application. (Wis. Reports, Vol. 
wtf. r> 695). See also from Simmons's Digest, page 134). 



Constitution of Wisconsin. 27 

death. As no crimes are now punished by death in this 
state, there are, of course, no capital offenses.* 

& The writ of habeas corpus is a process by which any 
person unjustly confined, either by private persons or 
by public officers, can be set free, if he has a right to be 
free. Any person unjustly detained may sue out a writ 
of habeas corpus before any judge or court commis- 
sioner (VII, 23). The person detained and the person 
detaining him, are then brought immediately before 
the judge or court commissioner, the case is heard, 
and if the person held ought to be free, he is set free at 
once by the judge or court commissioner.! 

In time of war and public danger it is often neces- 
sary to arrest persons on suspicion, and hold them until 
proof of their crimes has been secured. In such cases 
the legislature must suspend the privilege of the writ 
of habeas corpus, and then the officers of the state can 
imprison any one they please without being liable to 
have their prisoners freed by a writ of habeas corp>us. 

* M Since the abolition of capital punishment, persons charged with murder 
are in all cases bailable. 11 (Siminons's Digest, page 197, Wis. .Reports, Vol. 
xix, p. 876). 

t tk Our Constitution secures to every person within thest ate the privilege of 
the writ of habeas corpus, and the use of that writ is adapted to all casts of 
illegal restraint and confinement." (Simmons' Digest, p. 380, Wis. .Reports, 
Vol. iii, p. 157.) "Probable cause must be shown before a writ of habeas 
corpus will be granted; and when it appears prima facie from the applica- 
tion itself that there is no sumcient ground for the discharge of the person 
on whose behalf it is made, the writ will not be granted. " (Simmons' Di- 
gest, p. 386, Wis. Reports, Vol. xv, p. 479, Vol. xvi, p. 623.) 

"A discharge upon habeas corpus is no bar to subsequent proceedings 
for the same offense. 11 (Simmons 1 Digest, p. 367, Wis. Reports, Vol. iii, 
p. 145.) 

But. "after a person has been discharged on habeas corpus, by a valid or- 
der of a court or magistrate having jurisdiction of the writ, a warrant for 
the same cause, that is, upon the same, warrant, is unlawful. n (Simmons' 
Digest, p. 887, Wis. Reports, Vol. iv, p. 163.) 



28 Constitution of Wisconsin, 

SECTION IX. 

! Every person is entitled to a certain remedy in the laws, for 
all injuries or wrongs he may receive in person, property, or 
character, 2 he ought to obtain justice freely, and without being 
obliged to purchase it, completely and without denial, promptly 
and without delay, conformably to the laws. 

x This is a statement of a truth which is only so much 
talk, except as it is carried out in the laws. This section 
has no more binding force than any other good advice 
has. But our statute books show that the legislature 
has tried to carry this out in good faith. There are very 
few wrongs to person, property or character, for which 
redress cannot be had under the laws of Wisconsin. 

2 Every person in the state can " obtain justice freely 
and without being obliged to purchase it." Any judge 
who should take a bribe would be removed from his 
office by impeachment (VII., 1) or by address (VII., 13), 
and be fined and imprisoned beside. It costs nothing 
to prosecute for any crime. The state carries on all 
criminal suits in its own name and at its own cost; for 
they are " against the peace and dignity of the state of 
Wisconsin." (VII., 17.) In civil suits, which are car* 
ried on for the benefit of private persons, each one 
must pay his lawyer, if he has any, and the party who 
loses must pay the costs of the suit. With these excep- 
tions, justice costs nothing in Wisconsin. 

SECTION X. 

'Treason against the state shall only consist in levying war 
against the same, or in adhering to its enemies, giving them aid 
or comfort. 2 No person shall be convicted of treason unless on 
the testimony of two witnesses to the same overt act, or on con 
fession in open court.* 

*This is taken directly from the United States constitution (Art. Ill, sect. 
3), putting the state in place of the United States. 



Constitution of Wisconsin. 29 

^nder this section, any one may talk treason as 
much as he pleases, and may even conspire against the 
government, without being punished. Only open acts 
of war are counted treason. 

Two witnesses are required, because in times of 
civil war and rebellion party spirit runs so high that 
one witness might easily swear falsely, or exaggerate 
the truth. 

The confession must be in open court, so that it shall 
be the real confession of the accused, as he wishes to 
make it, and so that it shall be truly reported. Confes- 
sions of persons accused of any crime are never taken 
as proof of their guilt, except they are made in open 
court. 

SECTION XI. 

The right of the people to be secure in their persons, houses, 
papers and effects, against unreasonable searches and seizures, 

shall not be violated, and no warrant shall i>sue but upon prob- 
able cause, supported by oath or affirmation, and particularly 
describing the place to be searched, and the persons or things tb 
be seized.* 

Under this section, the officers of the law cannot search 
any house and any place they please, to find stolen prop- 
erty. Some one must first swear out a search warrant, 
and show some reason to think the things wanted are 
there; and then the person or place can be legally search- 
ed — and not before. 

*This is copied from the United States Constitution, (Amendment IV,) with 
a slight change in the last line. 



30 Constitution of Wisconsin. 



SECTION XII. 

No 'bill of attainder, -ex post facto law, 3 nor any law impair- 
ing the obligation of contracts, shall ever be passed; 4 and 
no conviction shall work corruption of blood or forfeiture of 
estate.* 

*A bill of attainder is a bill to punish a single person 
or a number of persons, named in the bill, without a 
regular trial. This was a very common thing in early 
English history, especially for political crimes. It would 
have been, for instance, a bill of attainder if Congress, 
after our civil war, had passed a bill against Jeff. Davis 
for treason, and sentenced him to death without jury 
trial before a regular court. Such a thing is forbidden 
by this clause.f 

2 An ex post facto law is one to punish, not only those 
w T ho may afterward break it, but those who have already, 
before the law takes effect, done anything contrary to it; 
or a law which adds a new punishment to former crimes. 
The Supreme Court has decided that this section of the 
United States Constitution does not forbid all retrospec- 
tive laws, but only in criminal cases. u An ex post facto 
law is one which renders an act punishable in a manner 
in which it was not punishable when it was committed."J 

*The three things forbidden in the first half of this section are forbidden 
to every state by the United States constitution (Art. I, sect. 10), and are, 
therefore, forbidden in this state by double authority — that of the state con- 
stitution and that of the United States constitution. 

tStory, in his work on the United States constitution (section 1344) says: 
" Bills of attainder, as they are technically called, are such special acts of the 
legislature as infiict capital punishment upon persons supposed to be guilty 
of high offienses, such as treason and felony, without any conviction in the 
ordinary course of judicial proceedings. If an act inflicts a milder degree 
of punishment than death, it is called a bill of pains and penalties. But in 
the sense of the constitution, it seems that bills of attainder include bills 
of pains and penalties, 11 (quoting a decision of the Supreme Court of the 
United States). 

This definition differs from that given in Webster's Dictionary - . Judge 
Story is generally considered better authority on a point of law than J. C. 
Perkins, who furnished the legal definitions for the last edition of Webster's 
Unabridged, and Story's definition is, therefore, followed here. 

X Fletcher vs. Peck, 6 Cranch, 138, quoted in Story, §1345. 



Constitution of Wisconsin. 31 

For instance, a law to punish with death all murder- 
ers who may be convicted of murders they have already 
done, would be ex post facto, because the punishment 
for that crime is now imprisonment in the state's prison. 
But a law to hang all persons who are convicted of mur- 
der, done after the law goes into effect, would be per- 
fectly constitutional. 

8 Contracts once made cannot be broken, unless the 
persons who make the contract all agree to break it. But 
the law can determine what shall be the conditions of a 
valid contract. For instance, a contract which is for an 
immoral purpose, or which involves an immoral consider- 
ation, is never valid, and may always be broken. A con- 
tract to sell counterfeit money, a contract to kill another 
person for so much money, a bargain made by a judge 
to give a wrong decision, would none of them be bind- 
ing contracts. The parties had no right to make them 
in the first place, and therefore can break them when 
they please. The obligation of these contracts is not 
impaired by the law annulling them; for they never had 
any obligation. The law can at any time fix the condi- 
tions of all future contracts, but it cannot impair the ob- 
ligation of past contracts, provided, they were legal when 
they were made. This provision of the constitution in 
civil cases, is like the proviso against ex post facto laws 
in criminal cases. 

Corruption of blood is punishing children for the 
sins of their fathers. Under the English common law, 
when anyone was convicted of treason, he forfeited all 
his property to the state, and his blood was considered 
corrupt; so that his children and other relatives could 
not inherit from him. His link in the chain of inherit- 



32 Constitution of Wisconsin. 

ance was broken, so that none could inherit property or 
titles or civil rights from him. This great injustice of 
punishing children for what their fathers have done, is 
abolished by this section. 

SECTION XIII. 

The property of no person shall be taken for public use with- 
out just compensation therefor.* 

The state has the right of eminent domain, and can 

take private property for public use whenever it chooses. 

This section provides that when private property is so 

taken there shall always be just compensation given for 

it.f 

SECTION XIV. 

! A11 lands within the State are declared to be allodial, and feu- 
dal tenures are prohibited. Leases and grants of agricultural 
land, for a longer term than fifeeen years, in which rent or ser- 
vice of any kind shall be reserved, and 3 all fines and like restraints 
upon alienation, reserved in any grant of land hereafter made, 
are declared to be void. 

1 Allodial lands are those which are held by the owner 
without being subject to any feudal service or any tax 
or rent other than the tax levied by the government. 
Nearly all the land in the United States is allodial. 

2 Feudal tenure originally was military service — later, 
it came to mean any service or rent that is to be perpetual. 

*Private property cannot be taken for jyrivate use, without the consent of 
the owner, even with compensation. Public roads may be opened through 
any one's land, but private ones cannot, except by consent of the owner. 
See the decision of the supreme court on this point (Wis. Reports, Vol. 
xxiv, p. 89.) 

t" Where private property is taken for public use, the 'just compen- 
sation therefor' which the constitution requires, consists in paying the 
owner not only the value of the portion taken, but also the diminution 
of the value of that from which it is severed. 11 (Wis. Reports, vol. xxvii, p. 
478.) This was a case of a railroad company cutting up a man's farm. The 
company was obliged to pay for the damage done to the land, as well as foi 
the land actually used in constructing the railroad; and the rise in the value 
of other land owned by the plaintiff in consequence of the railroad being 
constructed, was not allowed as a set-off. 

See comments on section I of this article. 



Constitution of Wisconsin. 33 

The time is limited for which farming land may be 
rented, because, otherwise, this section might have 
been evaded by leasing land for a very long period (for 
instance, for 000 years, the term for which land has 
sometimes been leased in England). This section is 
restricted to agricultural lands, because land is frequent- 
ly leased for building purposes for a longer time than 
fifteen years. 

3 Fines and like restraints upon alienation are common- 
ly called " entails," and are frequently used in England 
to keep large estates together after the death of the 
owner. 

The object of this section is to prevent the growth of 
a landed aristocracy, such as is the curse of England, 
to-day. To do this, feudal tenures and entails are both 
prohibited by this section. Primogi mture, or the right 
of the eldest son to inherit all the real estate with the 
title, has never been established in this country, and, 
probably, never will be. These three things, feudal ten- 
ures, entails, and primogeniture, are the three pillars of 
the English aristocracy. 

What we want in this country is, that the people who 
till the land, should own the land; and that anybody 
who wants land, may be able to get it by offering a fair 
price for it. The farmers in moderate circumstances, 
who work their farms themselves, are the backbone of 
any country. With them, Rome conquered the world; 
for lack of them, in later years, she lost it again. The 
honest yeomanry of England were her strength in former 
days; the lack of that class now is her greatest weak- 
ness. Slavery prevented the growth of such a class of 
independent farmers in the Southern States, and made 
c 



34 Constitution of Wisconsin. 

labor dishonorable, and was, therefore, the cause of the 
ignorance and poverty of a large part of the whites, as well 
as of the blacks. If we would be a nation of intelligent 
freemen, we must never allow the farming class to be 
divided into a haughty aristocracy and a degraded peas- 
antry. That danger this section helps to guard against. 

SECTION XV. 

No distinction shall ever be made by law between resident 
aliens and citizens, in reference to the possession, enjoyment, or 
descent of property. 

Aliens are foreigners who have not yet been natural- 
ized. Resident aliens are such foreigners as live in the 
state. Only aliens needed to be thus protected by the 
state constitution, for citizens of other states living 
here are already guaranteed all the rights of citizens of 
this state by the United States Constitution, (Art. IV., 
Sect. 2). Non-resident aliens are not protected in the 
holding of property by either constitution. No distinc- 
tion has, however, been made against them by law, and 
it is not likely that there ever will be. Anybody, citizen 
or foreigner, resident or non-resident, can hold property 
in this state, under the same conditions. 

SECTION XVI. 

No person shall be imprisoned for debt arising out of, or 
founded on a contract, expressed or implied. 

No person can be imprisoned for debt in this state, 
unless he has committed some fraud in regard to it. If 
he obtained property under false pretenses, he can be 
imprisoned ; not for the debt, but for the fraud. For 
the debt, he must be sued in the ordinary way. So, if 



Constitution of Wisconsin, 35 

any one embezzles trust funds, whether he be a public 

officer, or a guardian, or a trustee of any corporation, 

he cannot be imprisoned for the debt, but may be for 
the embezzlement.* 

SECTION XVII. 

The privilege of the debtor to erfjoy the necessary comforts of 
life shall be recognized by wholesome laws, exempting a reason- 
able amount of property from seizure or sale for the payment of 
any debt or liability hereafter contracted. 

Under this section the legislature has passed very lib- 
eral exemption laws. These laws exempt a homestead 
of forty acres of land, or a village or city lot, with the 
building on it, provisions for a year for the family, the 
necessary tools for a mechanic, the library of a profes- 
sional man, and a great variety of things, too numerous 
to mention. 

SECTION XVIII. 

] The right of every man to worship Almighty God accord- 
ing to the dictates of his own conscience shall never be in- 
fringed, nor shall any man be Compelled to attend, erect, or sup- 
port tiny place of worship, or to maintain any ministry, against 
his consent. -Nor shall any control of or interference with 
the rights of conscience be permitted, or any preference be given 
by law to any religious establishments or mode of worship. 
3 fror shall any money be drawn from the treasury for the 
benefit of religious societies, or religious or theological semin- 
aries. 

1 One of the greatest evils of every European coun- 
try is prevented by this section. 

**' The constitutional prohibition of imprisonment for debt extends only to 
cases of debt arising out of contract, expressed or implied, and does not 
apply to judgments^ in actions of ejectment, or other actions, ex delicto."' 
(Wis. Reports, Vol. X, p. 495.) l4 It docs not include damages for those 
wrongful acts which either party to a contract may possibly do. and which, 
though remotely connected with the contract, we're not anticipated by the 
parties at the tune of making it; such as the conversion of personal proper- 
ty by a party in whose hands it has been placed as security tor a debt."' 
vWis. Reports. Vol. XII, p. 5.2.) " Or the conversion by an attorney of mon- 
ey collected by him for his client. n (Wis. Reports. Vol. XIV. p. 226.) The 
above abstracts of decisions are quoted from Simmons* Digest, p. 405. 



36 Constitution of Wisconsin. 

There is complete religious freedom here. Any one 
may believe and teach whatever he pleases, so long as he 
does not do anything that interferes with other people's 
rights. Any one may believe and teach the doctrine of 
the Thugs of India; that it is pleasing to their goddess 
to have them rob and murder travelers. We should 
have a right to think and'to say that it is a very wicked 
religion; but we could not punish any one by law for 
believing and teaching it. But let one try to put it in 
practice by actually robbing and murdering some one, 
and he can be arrested, tried and punished; not for his 
wicked belief, but for his wicked actions. So, the Mor- 
mons may believe in polygamy, and preach it in this 
state, without any legal punishment. But if one of them 
should try to put his belief in practice in this state, by 
marrying two or three wives, he would be punished; not 
as a Mormon, but as a bigamist. 

2 Under this section, no particular form of religion 
can be taught in our public schools; for that would be 
preference given by law to some mode of worship; and, 
therefore, the constitution wisely provides that our 
common schools shall be unsectarian. (X. 3.) 

3 The last sentence of the section would, unless re- 
pealed, stop the project proposed by several bodies of 
Christians, of dividing the school money among the 
different denominations, for sectarian schools to take the 
place of our common schools. 

SECTION XIX. 

No religious tests shall ever be required as a qualification for 
any office of public trust, under the State, and no person shall be 
rendered incompetent to give evidence in any court of law or 
equity, in consequence of his opinions on the subject of religion. 



Constitution of Wisconsin. 37 

Religious tests have been a great evil in Europe. 
They are prohibited here. Any person who is other- 
wise qualified, may hold any office in the state, no mat- 
ter what his religious opinions may be. And no person 
can be prevented from testifying in any court, because 
of his religious opinions. If the members of certain 
religious bodies were not allowed to testify, it would be 
as much as to say, that they could not be believed under 
oath: which would be an unjust stigma to fix on any 
form of religious faith; for there are honest men in all. 

SECTION XX 
The military shall be iu strict subordination to the civil power. 

We wish to guard against a military despotism in this 
country. We do not wish to have a successful general 
seize the government with the help of his army; and we 
do not intend ever to give him a chance to do it. 

The militia of this state is under the command of the 
Governor, who is commander in chief; and is raised or 
disbanded at the pleasure of the legislature. Soldiers 
are responsible to their officers, they to their superiors, 
and they to the Governor, as commander-in-chief. 
Should he misuse his office, he can be impeached and re- 
moved; so that by this means, the military is subordi- 
nate to the civil nower. 

SECTION XXL 

Writs of error shall never be prohibited by law. 

After any criminal case or civil suit has been decided, 
if the decision is wrong by reason of any informality in 
the proceeding:-, or a wrong decision in regard to the 



3S Constitution of Wisconsin. 

law, it can be corrected by a " writ of error," which car- 
ries it up to a higher court, where, if the decision is 
wrong, a new trial will be ordered. * 

SECTION XXII. 

The blessings of a free government can only be maintained by 
a firm adherence to justice, moderation, temperance, frugality 
and virtue, and by frequent recurrence to fundamental principles. 

Of course, this has no binding force. It is only a 
recommendation, which the people can follow or not as 
they please. We cannot make people good by law. We 
can only stop them from doing anything very bad; but 
though we cannot make people virtuous by law, we need 
to have them so, to have the laws amount to anything. 
In this country the people make the men who make the 
laws, and the men who enforce the laws. Our free gov- 
ernment depends upon the people, who can make it a 
blessing or a curse, according as they are themselves in- 
telligent, upright and virtuous, or the opposite. It 
will do no good to write this constitution on paper, un- 
less the people of Wisconsin are themselves, as ex- 
pressed in this twenty-second section, just, moderate, 
temperate, frugal and virtuous; and unless they know the 
principles on which our government is founded. That 
they may know these principles, the legislature has wisely 
decided that this constitution shall be taught in our com- 
mon schools; and it ought to be taught so that the schol- 
ars shall not only know the words, but so that they shall 
understand its principles, and know the reasons for them.f 

*'• The constitutional provision that writs of error shall never be prohibited, 
vas not intended to prevent any limitation of that right. Chapter 61, laws 
of 185$, which limits the time for bringing the writ to two years, is valid. " 
(Simmons 1 Digest, page 250. Wis. Reports, vol. xii, p. 371.) 

t Aristotle said 2,000 years ago: "But whosoever endeavors to establish 



Constitution of Wisconsin. 



39 



ARTICLE II. 



BOUNDARIES. 



Articles II and IX logically belong together, as both 
treat of the jurisdiction of the state. The subject of 
the jurisdiction of the state comes naturally before that 
of the forms and powers of the state government, of 
which the articles that follow treat, because we first 
wish to know what is to be governed, before we know 
how it is to be governed. The analysis of articles II 
and IX is, therefore, given in this place, and given as if 
they w T ere one article, as they might better have been. 
But the text and comments upon article IX are given in 
their place under that article : 



Jurisdiction of 
the State. 



1. Boundaries, 



Article II. Section 1 



f 1. No interference with United 1 
2. Restrictions on L States titles. 

8taU juris- i 2. No tax on United States land, *% 



diction. 



Extent of juris- 
diction, 



3. No unequal tax on any non- 

resident owners. 

Article IX. Section 
f 1. Concurrent on lakes and riv- / 

ers that bound the state. vl 
I 2. All streams free highways. ) 
j 3. State succeeds to the proper- / 

ty of the Territory of Wis- V2 

cousin. S 

4. State has the right of emi-|„ 
[ nent domain, \ 6 



SECTION I. 



*It is hereby ordained and declared that the State of Wisconsin 
doth consent and accept of the boundaries prescribed in the act 
of Congress entitled " an act to enable the people of Wisconsin 
Territory to form a Constitution and State Government, and for 
the admission of such State into the Union ;" approved August 

wholesome laws in a state, .attends to the virtues and vices of each individual 
who composes it: and hence it is evident that the first care of a man who 
would found a state, truly deserving that name, and not nominally so. must 
be to have his citizens virtuous: for, otherwise, it is merely an alliance for 
mutual defense. 



40 Constitution of Wisconsin. 

sixth, one thousand eight hundred and forty-six, to-wit: begin- 
ning at the north-east corner of the State of Illinois, that is to say, 
at a point in the center of lake Michigan where the line of forty- 
two degrees and thirty minutes of north latitude crosses the same ; 
thence, running with the boundary of the State of Michigan, 
through lake Michigan, Green Bay, to the mouth of the Menom- 
onee river ; thence up the channel of the said river to the Brule 
river ; thence up said last mentioned river to lake Brule ; thence 
along the southern shore of lake Brule, in a direct line to the 
center of the channel between Middle and South Islands, in the 
lake of the Desert ; thence in a direct line to the head waters oi 
the Montreal river, as marked upon the survey made by Captain 
Cram ; thence down the main channel of the Montreal river to 
the middle of lake Superior ; thence through the center of lake 
Superior to the mouth of the St. Louis river ; thence up the main 
channel of said river to the first rapids in the same, above the In- 
dian village, according to Nicollett's map ; thence due south to 
the main branch of the river St. Croix ; thence down the main 
channel of said river to the Mississippi ; thence down the center 
of the main channel of that river to the northwest corner of the 
State of Illinois; thence due east with the northern boundary of 
the State of Illinois, to the place of beginning, as established by 
" an act to enable the people of the Illinois Territory to form a 
Constitution and State Government, and for the admission oi 
such State into the Union on an equal footing with the original 
States," approved April 18th, 1818.* 

These are now the boundaries of the State of Wis- 
consin. It is not likely that they ever will be changed; 
for, in order to change them, it is not enough for us to 
wish them changed; congress must also consent to the 
change, and so must the legislature of the other state or 
states concerned. For instance, if we should wish to 
have that part of Michigan that lies between lake Su- 

*The following alteration of the boundary was proposed to Congress at the 
time this constitution was adopted, hut as Congress did not consent to the 
change, it could not be made; and the words that follow in brackets are not 
a part of the State Constitution. They are, however, usually given in the 
published copies of the constitution, and they are, therefore, given here as a 
matter of history: [Provided, however, That the following alteration of the 
aforesaid boundarv be, and hereby is, proposed to the Congress of the United 
States as the preference of the State of Wisconsin, and if the same shall be 
assented and agreed to bv the Congress of the United States, then the same 
shall be and forever remain obligatorv on the State of Wisconsin, viz: leav- 
ing the aforesaid boundarv line at the foot of the r«apids of the St. Louis river; 
Thence in a direct line bearing southwesterly, to the mouth of the Iskodewabo 
or Rum river, where the same empties into the Mississippi river; thence, 
down The main channel of the said Mississippi river, as prescribed in the 
aforesaid boundary.] 



Constitution of Wisconsin. 41 

perior and lake Michigan, annexed to this state, we 
must get the consent of the legislature of Michigan, and 
of congress, as well as of our own legislature. Should 
any such change be made, it would be, really, an amend- 
ment to this section; but it would not need to be form- 
ally amended in any of the ways prescribed by Article 
XII. Under the United States Constitution (IV., 3,) 
the consent of the legislatures of the states concerned, 
and of congress, is enough. That would of itself amend 
this section without any further action by the State of 
Wisconsin. 

2 The boundary of Wisconsin is commonly given in 
the geographies as lake Superior and the State of Mich- 
igan on the north, and Michigan and lake Michigan on 
the east, and sometimes, also, the Mississippi river is 
given as part of the western boundary. These bound- 
aries are not the true ones. The State of Wisconsin ex- 
tends to, the center of lakes Michigan and Superior; 
and to the center of the main channel of the Mississippi 
river. As the states of Wisconsin and Michigan meet 
in the center of lake Michigan, it is not lake Michigan 
that bounds Wisconsin on the east, but the State of 
Michigan, and so on. The correct boundary of Wiscon- 
sin in general terms, is as follows: Wisconsin is bounded 
north by Minnesota and Michigan, east by Michigan, south 
by Illinois, and west by Iowa and Minnesota. 

SECTION II. 

! The propositions contained in the act of Congress are hereby 
accepted, ratified and confirmed, and shall remain irrevocable 
without the consent of the United States ; and it is hereby or- 
darned that this state 'shall never interfere with the primary 
disposition of the soil within the same, by the United States, nor 



42 Constitution of Wisconsin. 

with any regulations Congress may find necessary for securing 
the title in such soil to bona fide purchasers thereof; 3 and no tax 
shall be imposed on land the property of the United States; 
4 and in no case shall non-resident proprietors be taxed highe*r 
than residents. b Provided, That nothing in this Constitution, or 
in the act of Congress aforesaid, shall in any manner affect the 
right of the State of Wisconsin to five hundred thousand acres 
of land granted to said state, and to be hereafter selected and lo- 
cated, by and under the act of Congress, entitled " an act to ap- 
propriate the proceeds of sales of the public lands, and grant 
pre-emption rights," approved September fourth **• thousand 
eight hundred and forty -one. 

1 This section can be amended in either of the ways 
prescribed in Article XII, if the consent of congress is 
also obtained. 

a The title to land is of great importance, and in all 
civilized countries, great pains are taken to make the 
titles to land secure* The United States has sold, or is 
still offering for sale, the greater part of the land in the 
state. Its patents for land are really warranty deeds. 
The United States guarantees to the purchaser a clear 
title to the lands. Now, to avoid all trouble, and to 
make the title perfectly sure, congress provides that 
the state shall never interfere with titles to land de- 
rived from the United States. Otherwise, it is possible 
that the state might at some future time have claimed, 
that when the United States ceded the territory to the 
new State of Wisconsin, they ceded also the right to 
dispose of those titles. This is now forbidden by the 
law of congress and by this section of our Constitution. 
It is a fact, however, that our legislature, like those of 
several other states, has tried to regulate the United 
States surveys, and correct the errors in them. These 
laws were, of course, unconstitutional, and have now 
been repealed. 



Constitution of Wisconsin. 43 

The titles to land in the state of Wisconsin all either 
come from the United States or are endorsed by the 
United States. The Indians were the original owners 
of the soil. But when America was discovered by Euro- 
peans, they held the Indians' ownership of little account. 
As between themselves they finally determined that the 
nation which first discovered a tract of country should 
have the title to it, provided that the discovery was fol- 
lowed up by occupancy within some reasonable time. 
European nations had already recognized the fact that 
a title to land may be acquired by conquest in war, or 
by peaceful purchase. So that various nations gained 
title to land in America in some one or other of these 
three ways: 

1. Discovery, followed by occupation; 

i. Conquest; 

3. Purchase, or voluntary cession. 

It would be interesting to trace out the different na- 
tions in which the sovereign po^ver over some part of the 
United States has been at some time vested, and the 
various processes by which the sovereign power, and 
with it the original title to land, and the right of emi- 
nent domain, has passed from one nation to another. 
But we can only take up now our own state. 

The original title to land in Wisconsin belonged, of 
course, to the Indians, so far as savages can be said to 
have a title to land they do not use to any valuable pur- 
pose. This title was, however, disregarded by France, 
which claimed under the discoveries of Marquette and 
Joliet, and the settlements made soon after in various 
parts of the state. In the great war known in American 
history as the Old French War, France was beaten, 



44 Constitution of Wisconsin. 

and paid the costs of the war by coding all her posses- 
sions in America to England. This included what is 
now Wisconsin. After the Revolutionary War, Eng- 
land in like manner ceded what is now Wisconsin, 
to the new nation which had conquered its freedom. 
When the United States admitted Wisconsin to the 
Union, she was admitted as a sovereign state; and the 
United States gave to Wisconsin by the act admitting 
her to the Union, the sovereign title to the land, with 
certain restrictions, which are embodied in this section 
of our constitution. Without counting the Indians, the 
territory embraced in what is now the state of Wiscon- 
sin, has passed through the following hands: 

1. France, by discovery and settlement; 

2. England, by conquest; 

3. The United States, by conquest; 

4. The state of Wisconsin, by peaceable cession. 
Now, at every change of sovereignty, the rights of 

private owners of land have been carefully guarded. 

There was no private ownership among the Indians. 

A few patents for land were issued by the French 
government, and the rights of owners under them were 
guaranteed by the treaty of cession from France to 
England. A like guarantee was made in the treaty of 
cession from England to the United States, and a like 
guarantee is given in the act of congress admitting Wis- 
consin to the Union, and confirmed by the clause in this 
section, forbidding interference with United States titles 
to land. 

The original title to all the land in Wisconsin thus 
depends upon the guarantee of the United States. 
Every person who owns a foot of land in Wisconsin 



Constitution of Wisconsin. 45 

obtained it either from the state or United States or 
from some person or series of persons, the first of whom 
received it from the state, the United States, England 
or France. It is therefore the interest of every person 
who owns land to defend the government which guaran- 
tees him possession of it. 

3 Of course it would not be fair to tax the land that 
belongs to the United States; for the government is 
holding it for the general good, and not to make any 
profit out of it. Therefoie congress provided, and the 
state agreed that the United States land should never 
be taxed. 

4 The clause that prevents the state from taxing non- 
resident proprietors higher than residents is put in be- 
cause that would be a way of interfering with the title 
to property. The state could easily, were it not for this 
clause, tax non-resident proprietors so high that they 
would sell out cheap, or let their land be sold for taxes. 

5 For more about the five hundred thousand acres of 
land, see art. X, sec. 2. This land was given to the 
state by the United States, for the benefit of common 
schools, aud the proceeds of its sale form a large part of 
the school fund of the state. 



4 6 



Constitution of Wisconsin. 



ARTICLE III. 



SUFFRAGE. 



Qualifications 
or Voters, 



Classes Spec- 
ially Disqual- 
ified, 



1. Male, - - 

2. Twenty-one years old, - 

3. One year a resident, - 
a. White citizen, - 



Sec. 



4. Must be either - 



White foreigner who has 
declared his intention, 

Indian made citizen by 
Congress, - 

Civilized Indian ; or, 

Negro citizen [by stat- 
ute], 



Manner of Voting, 



1. Idiots and insane persons, 2 

2. Convicts, unless restored to civil rights, - - 2 

3. U. S. soldiers and sailors stationed here, - - 5 

4. But not persons absent on State or U.S. business, 4 

5. Those who have bet on any election are disquali- 

fied for that election, 6 

Duellists, XIII, 2 



The following additional restrictions upon suffrage, in 
regard to the eligibibility of the candidate for office and 
the time of elections are added to the analysis of this 
article, to complete the subject: 



Ulighbilitt, 



( Voters, .... 
Judges must be < Citizens of the U. S., 

( Twenty-five years old, 
Governor and Lieutenant] Voters, - 

Governor must be { Citizens of U. S., - 

SCna ^n ™^? emWy '-| Residents of their 
men must be } districtSi _ 

State officers must be voters,* 
County, town and district officers must be vot- 
ers,* 

r Sheriffs (for re-election,) 
I Members of Congress, - 1 
' U. S. Officers, - 
Officers of foreign powers, j- 



VII, 


10 


V, 


2 


IV, 


6 


- VI, 


1 


VI, 
- VI, 


4 

4 



Ineligible, 



Criminals, 
Defaulters, ' 



XIII, 3 



J 



Time or Voting, 



At general elec- 
tion, 



At spring elec- 
tion, 



For Assemblymen and Sen- 
ators, .... IV, 4 
For Governor and Lieuten- 
ant Governor, - - - V, 3 
For State officers, - - VI, 1 
For county officers (bylaw) XIII, 9 
For town, village and city 

officers (by law), - -XIII, 9 
Forjudges, - - - VII, 9 



* The Constitution does not state the qualifications of the administrative 
officers of the state, and of county officers. The supreme court has decided 
that in such cases it is to be presumed that any voter could be elected to 
these offices. 



Constitution of Wisconsin. 47 

SECTION I. 

'Every male person of the age of twenty-one years or upwards, 
belonging to either of the following classes, * who shall have re 
sided in the state for one year next preceding any election, shall 
be deemed a qualified elector at such election: 

1. White 3 citizens of the United States, 

2. White persons of foreign birth, 4 who shall have declared 
their intention to become citizens, conformably to the laws of the 
United States on the subject of naturalization, 

3. Persons of Indian blood, B who have once been declared by 
law of congress to be citizens of the United States, any subse- 
quent law of congress to the contrary notwithstanding, 

4. Civilized persons 6 of Indian descent, not members of any 
tribe ; 

Provided, ' That the legislature, may at anytime, extend by law 
the right of suffrage to persona not herein enumerated ; but no such 
law shall be in force until the >ame shall have been submitted to 
a vote of the people at a general election, and approved by a ma- 
jority of all the votes cast at such election. 

1 It may be asked, if the people rule, why then do 
they not make the laws directly. The answer is : the 
people of Wisconsin cannot all leave their business and 
travel, some of them a long way, so as to get together 
in one place and make the laws. Even if they could do 
this, there would be too many of them to do the busi- 
ness of making laws, in any orderly way. And eren if 
they made the laws, they would have to choose some- 
body to see that the laws were obeyed. It is impossible 
for the people all to get together in mass meeting and 
vote what they want done, and then do it. They must 
choose some one to make laws for them, and to execute 
those laws ; that is to represent the people. 

The first process of representation is, that the men 
over 21 years of age, represent the women and children 
and vote for them. Then the men vote for officers to 
represent them. These officers, as the representatives 
of the people, make the laws and see that they are 
obeyed. 



48 Constitution of Wisconsin. 

The form of every law, as prescribed by Article IV, 
Section 17, is: " The poople of the state of Wisconsin, 
represented in senate and assembly, do enact as fol- 
lows*" Our government is a representative government. 
It is not a pure democracy, nor, from the nature of the 
case, can it be. 

2 One year's residence is required of voters, so that 
they shall have time to get acquainted with the politics 
of our state, and know what they are voting for. An- 
other reason is, so that men shall not come over from 
some other state, just long enough to say they live here, 
and vote; and then go back again. 

3 Any person is a citizen of the United States, who is 
born in this country, or has been naturalized here, and 
does not become a citizen of some other nation after- 
ward.* A child born to a foreign ambassador, or to any 
foreigner living here for a short time only would not be 
considered a citizen, unless he chose so to be. So, also, 
the children of our ambassadors, and other citizens who 
live in foreign countries for a time, would be citizens of 
the United States, notwithstanding the fact that they 
were born abroad. Women and children are citizens as 
well as men. Negroes are citizens as well as white people. 
But uncivilized Indians are not citizens; because they 
are not governed by our laws, nor protected by our flag 
as negroes are, and as women and children are. A 
citizen of the United States is always a citizen of any 
state he or she may live in. 

4 If a person who is not a citizen wishes to become one, 
he must first " declare his intention " before the clerk 
of the circuit court, or of a United States district court. 

♦See amendment XIV to the United States constitution. 



49 

This he can do at any time. When he has lived five 
ra in this country, he can be naturalized, that is, 
made a citizen, provided he has " delared his intention " 
at least two years before. When a man who has a 
family is naturalized, that makes his wife and all his 
children who are less than twenty-one years old, also 
citizens. A woman can also become a citizen in the 
same way a man can; but that does not give her the 
right to vote.* 

5 The third clause about Indians, who have once 
declared by law to be citizens, was meant to apply 
to the Stockbridge Indians, who were all at one time 
partly civilized, and were therefore made citizens by act 
of congress. A part of them afterwards wished to go_ 
back to their oarage >tate again, and be governed by 
their old tribal customs, instead of by the state la 
and an act of congress was passed to that effect. When 
constitution was framed, this clause was inserted, so 
that these Stockbridge Indians could vote, just as if 
they were civilized. 

* There are quite a number of civilized Indians in 
this state, who dress and live like white people. They 

• •• Each state being sovereign, except as to matters referred to the general 
anient, may. as an undoubted result of that sovereignty, confer ^pon 
- all the righto and privileges of citizens of such state: Vat wM 
compliance with the laws of congress on the subject of naturalization, they 
cannot become citizens of the t'nited States, within the meaning of 
ition. 
"It was the intention of the framers of our state constitution to confer 
cpon aliens, who had declared their intention to become citizens of the 
United States, the full right of state citizen-ship." ( Simmons* Digest, p. 
Ill ; Wis. Reports. Vol. xvi. p. 443.^ 

Bv*. •- a mere declaration of intention to become a citizen, by an alien, 
father of children of foreign birth, who came with him to this country 
during their minority, does not make such children citizens of the - 

State*; and they do rot become such until their father 
becomes fully naturalized, or they themselves comply with the naturaliza- 
tion laws: and therefore they hove no right to vote.' and are not liable to 
military service." ^Simmons' Digest, p. 112*: Wis. Reports. Vol. xrii. p. 536.) 



50 Constitution of Wisconsin. 

are all citizens of the United States, and it is, therefore, 
fair that they should have the right to vote. 

7 The proviso at the close of this section was spe- 
cially meant to cover the case of negroes, who could thus 
have the right to vote given them at any time, by the 
vote of the legislature and of the people. Accordingly, 
in 1849, the legislature passed a law to extend the suf- 
frage to negroes. This was voted on at the next elec- 
tion, and was supposed, at that time, to hare been lost. 
Very few people voted on that question at all; and it 
was thought that the words, u a majority of all the votes 
cast at such election," meant a majority of all that were 
cast for anything. This majority the law did not have; 
but it did have a majority of all the votes that were 
cast on that subject. In 1866, the question came be- 
fore the supreme court, and it was decided that the law 
needed only a majority of all the votes cast on that sub- 
ject, and that the law was therefore legally passed.* 
Since 1866, therefore, negroes have voted in this state. 

Should the question of giving women the right to vote 
ever come before the people of Wisconsin, they could 
get that right by a law passed by the legislature, and 
voted for at the next general election, by a majority of 
all who vote on that question. 

SECTION II. 

T No person under guardianship, non compos mentis, or insane, 
shall be qualified to vote at any election ; 2 nor shall any person 
convicted of treason or felony be qualified to vote at any elec- 
tion unless restored to civil rights. 

* " Sec. 1, Art. 3, of our constitution is to be construed as providing for an 
extension of suffrage, in case a majority of aU the rotes on that subject, cast 
at any general election at which the question is submitted, shall be in its 
favor: and such a majority was sufficient to give effect to § 2, chap. 137, Laws 
of 1849, extending the right of suffrage to colored persons." (Simmons Di- 
gest, p. 217; Wis. Reports, Vol. xx, p. 544.) 



Constitution of Wisconsin, 5 1 

'A person may be placed under guardianship when it is 
evident that he cannot take care of himself — either be- 
cause of continual drunkenness, or idiocy or insanity. 

Xon compos mentis means " of unsound mind n — an 
idiot or an insane person. 

It is plain that persons who cannot take care of them- 
selves cannot help to govern the state ; and, there- 
fore, ought not to vote. 

* Felony means, under our law, any state's prison of- 
fense. A traitor to our state or nation, of course, ought 
not to help govern it ; nor should a pv rson who is so 
bad that he must be sent to state's prison ; therefore, 
traitors and felons are not allowed to vote. Such per- 
sons may be restored to civil rights either by special 
act of the legislature or by the governors pardon. It 
is usual, when convicts have behaved well in prison, to 
pardon them out a few days before their term is out, so 
as to restore them thereby to ci\*il rights ; for a pardon 
puts a convict back, in the eyes of the law, where he was 
before his offense (V. 6). 

SECTION III. 

All votes shall be given by ballot, except for such township 
officers as may by law be directed or allowed to be otherwise 
chosen. 

All votes are now given by ballot, except for over- 
seers of highways. 

SECTION IV. 

No person shall be deemed to have lost his residence in this 
state by reason of his absence on business of the United States, or of 
this state. 

If it were not for this proviso in the constitution, a 
United States ambassador or consul, or a soldier, or a 



52 Constitution of Wisconsin. 

sailor, would lose his residence in this state while he 
was absent on United States business, and would have 
to live a year in the state when he came back, before he 
could vote. Under this section, every year, many Uni- 
ted States officers come back from Washington or else- 
where to vote. During our civil war, a great many per- 
sons were absent from the state on business of the 
United States in the army, and they could not be spared 
to come home and vote; and so a law was passed to give 
the soldiers a chance to vote without coming home. 
Voting places were established in every Wisconsin regi- 
ment and battery, and the soldiers' votes were sent to 
Madison and counted with the rest.* Usually, however, 
persons absent from the state on public business must 
come home if they wish to vote. The state cannot set 
up a voting place wherever two or three persons happen 
to be, who could vote under this section. 

SECTION V. 

No soldier, seaman, or marine, in the army or navy of the 
United States, shall be deemed a resident of this state in conse- 
quence of being stationed within the same. 

This has the same reason in it as the last section. 
Soldiers, sailors and marines are citizens, not of the state 
where they happen to be stationed for the time, but of 
the state of which they were citizens when they enlisted. 
If they vote anywhere, they must vote there. But a 
soldier or a sailor who has enlisted from this state, and 
who is stationed here, can vote. 

*" The act of 18G2 authorizing citizen soldiers to vote while out of the state, 
is valid. The provision of the constitution (XIII, 5,) that no person shall 
vote for county officers out of the county in which he resides, does not mean 
that the voter ehall not be allowed to vote for officers of the county in which 
he resides, when absent therefrom, but that he shall not be permitted to vote 
for officers of a county in which he does not reside.' 11 [Simmons 1 Digest, p. 
247; Wisconsin Reports, Vol. xvi, p. 398.] 



Constitution of Wisconsin, 53 

SECTION VI. 

'Laws may be passed excluding from the right of suffrage all 
persons who have been or may be convicted of bribery or lar- 
ceny, or of any infamous crime, -and depriving every person 
who shall make, or become directly or indirectly interested in, 
any bet or wager depending upon the result of any election, 
from the right to vote at such election. 

1 A law has been passed which forbids any person con- 
victed of bribery, from voting at any election, unless re- 
stored to civil rights. 

After the war, a law was also passed forbidding de- 
serters and persons who ran away from the draft, from 
voting at any election. This law is now repealed, and 
such persons can now vote. 

The constitution also prohibits from voting at any 
election any inhabitant of the state who is engaged in 
a duel, either as principal or as accessory. (XIII, "2.) 

Duellists may be challenged at the polls, and, if they 
are proved to be such, they will not be allowed to vote. 

It is not necessary, as it is with persons guilty of 
bribery, that they have been convicted upon a trial before 
a court. 

* A law has been passed which excludes any person 
who is interested in a bet on an election, from voting at 
that election. 



54 



Co)istitution of Wisconsin. 



ARTICLE IV. 



LEGISLATIVE. 



, Consists 
of 



2. Numbers. 



3. HOW DIS- 
TRICTED. 



Assembly, 
Senate, - 



Sec. 
1 



Assembly— 54-100 members. 
Senate — x /i- x A as many, 



Census, 



Apportioned, 



( United States, 
\ State, .... 
[ By legislature at the ses- 
sion after each census, 



'] By districts of contiguous 
t territory, 

f By single districts, 

4. Elections -j On Tuesday, after first Monday of November, 

I, By the qualified electors, 



^ -Fttptttt- ( One year a resident, 
J A qualified elector, 



< j\ quannea elector, - 

( Residing in the district represented, 

Judge of elections of its own members, 
A majority, 



W 

w 



< 

i—i 
O 

S3 



6. Powers of 
each house 
separately 



Quorum, 



Preserve order, 
Choose its officers, 



Less number may keep up 

the organization, 
Make its own rules, 
Punish disorder, - 
Expel by two-thirds vote, 



7. Powers of 

MEMBERS. 



Publicity, 



Restrictions. 



i 



i 



Keep a public journal, - 10 
Sit with open doors, - - 10 
Vote by yeas and nays when 
[ called for, 20 

Adjourn for three days or less, - - - - 10 

On taking office from the state 12 
On holding any United States 

office, . . . 
On taking state printing, 
Must take oath of office, - 
From arrests and civil suits, 
From liability for words 

spoken in debate, 
Pay and mileage, 



Privileges, 



8. Time and place of meeting, 

9. Vacancies — how filled, 



10. Laws. 



11. Dun: s. 



Style of the laws, 

Where originate, 

Legislative power to supervisors, - 

On private and local bills, 
But one system of town and 
county government, 

Restrictions, - -j On lotteries and divorces, - 
On state printing, 
On pay of officers, 
On special legislation, 



13 
25 

28 
15 

16 
21 

- 11 
14 

- 17 
19 

- 22 

18 



23 



27 



To regulate suits against the state, 

To organize the militia, '<& 

To make elections viva voce, 30 

To pass general laws where special legislation is 

forbidden, - - 32 

To provide a great seal for the state, - - XIII, 4 



Constitution of Wisconsin. 



55 



RESTRICTIONS OX LEGISLATION. 

The following additional restrictions on the power cf 
the legislature are found in other articles of this consti- 
tution: 



I. Personal Lib- 
erty. 



1. No bill of attainder. .... 

2. TXo ex post facto la,Wi .... 

3. No law impairing contracts, 

4. No corruption of blood or forfeiture of 

estate. 

5. No distinction against resident aliens, - 

6. No Imprisonment for debt, - 

7. Freedom of conscience, - 

8. No religious test, 



ri 



n 



Federal Rela- 
tions. 



1. No interference with title to land given 
by United States. - - - - II. 

2. No tax on United States land. - - II, 

3. No unequal tax on non-residents, - - II, 

4. No toll or duty on navigation, - - IX, 

III. Form op Supreme Court to be changed but once, - VII. 

f No loan of credit of the state, - - VIII, 
C for extraordi- 

No public debt, except -j J^JJ^ 6 ? * VIIL 

war debt] - VIII.' 
Mode of voting on financial bill*. - VIII, 
No debt for internal improvement. - - VIII, 
No bank* without a vote of the people, XI, 

I Counties of les« than 000 square miles, 
not to be divided without a vote of 
the people. XIII, 
No county sent to be removed without a 
vote of the people, .... XIII, 



IV. Financial. 



V. Eelatino to 
Counties. 



SECTION I. 

The legislative power shall be vested in a Senate and Assembly. 

The legislature of this state, like those of all other 
states of our Union, is organized after the model of the 
congress of the United States; with two houses — the 
upper one, smaller in numbers, and elected for a longer 
term than the lower house. By this means the lower 
house will be likely to represent the wishes of the people, 
and the upper house will be likely to be more cautious 
in what they do, and oppose any very hasty and incon- 
siderate action of the lower house. 

The legislature has power to pass any laws not for- 



56 Constitution of Wisconsin. 

bidden by the state or United States constitution; and 
it has also power to repeal or amend any laws already 
passed.* 

* SECTION II. 

The number of the members of the Assembly shall never be 
less than fifty-four, nor more than one hundred. The Senate 
shall consist of a number not more than one-third, nor less than 
one-fourth, of the number of the members of the Assembly. 

The number of members of the first Assembly, called 
under this constitution, was 66. The number of Sena- 
ators was then 19. We now have the largest number of 
both that the constitution allows us, 100 Assemblymen 
and 33 Senators. 

SECTION III. 

1 The legislature shall provide by law for an enumeration of 
the inhabitants of the state, in the year one thousand eight hun- 
dred and fifty-five, and at the end of every ten years thereafter ; 
and at their first session after such enumeration, and also after 
each enumeration made by the authority of the United Slates, 
the legislature shall apportion and district anew the members of 
the Senate and Assembly, according to the number of inhabit- 
ants, 2 excluding Indians not taxed, and soldiers and officers of 
the United States army and navy. 

1 The United States census is taken every ten years, 
in the years whose numbers end with zero. The state 
census is taken every ten years, in the years whose num- 
bers end with five. So that one census or the other is 
taken every five years. And, therefore, the state is dis- 

* " The legislature, when not restrained by the federal or state constitutions, 
may pass whatever laws it deems proper, hut it belongs to the judiciary to 
determine what the law ?s or has been. When the legislature undertakes to 
construe or declare what is the existing law. by means of a declaratory act, it, 
as a general rule, goes beyond its constitutional sphere, and usurps powers 
which do not belong to it. 11 (Simmons 1 Digest, p. 479; ^Chandler's Reports, 
Vol. ii, p. 212.) 

" When the legislature has enacted a law on a given subject, it does not 
thereupon cease to possess any legislative control over that subject during 
that session, but on the contrary it may pass other acts at the same session 
repealing or modifying the 11™!." (Simmons 1 Digest, p. 479; Wisconsin 
Reports, Vol. i, p. 513.) 



Constitution of Wisconsin. 57 

tricted for senators and assemblymen every five years. 
The reason for having the apportionment twice as often 
as the apportionment for members of congress, is that 
the state is being settled so fast that it must be re-dis- 
tricted quite often, or the new parts of the state will 
not have their fair share of assemblymen and senators. 
2 Indians not taxed are not citizens of the United States, 
or subject to their jurisdiction, and, therefore, ought not 
to be represented. United States soldi irs and sailors 
who are not citizens of this statu, are not entitled to vote 
here; (III, 5,) therefore, neither of these class. s is count- 
ed in apportioning members of the legislature. 

SECTION IV. 

The members of the Assembly shall be chosen annually In- 
single districts, l on the Tuesday succeeding the first Monday in 
November, -by the qualified electors of the several dist 

3 such districts* to be bounded by county, precinct, town or ward 
lines, to consist ^t' contiguous territory, 4 and be in as compact 

form as practicable. 

1 The day of election is the same day as that of elect- 
ing congressmen and presidential electors; and also the 
same day as that of electing all state officers. 

2 The qualified electors of a district are all those who 
have a right to vote in the state under Art. III. of this 
constitution, and who reside in the district. 

3 The Assembly districts are to be bounded by county, 
precinct, town or ward lines, because these are the lines 
that divide the voting districts. It would make a great 
deal of confusion and useless trouble if two or three dif- 
ferent sets of officers were voted for at the same time 
and place. 

4 It is provided that the Assembly districts shall be in 
as compact form as practicable, for the sake of conven- 



5S Constitution of Wisconsin. 

ience, and also, as far as possible, to prevent the legis- 
lature from so arranging the districts as to give an un- 
fair advantage to either political party. 

SECTION Y. 

The senators shall be chosen by single districts of convenient 
contiguous territory, at the same time and in the same manner 
as members of the Assembly are required to be chosen, and no 
Assembly district shall be divided in the formation of a Senate 
district. The Senate districts shall be numbered in regular 
series, and the Senators chosen by the odd-numbered districts 
shall go out of office at the expiration of the first year, and the 
Senators chosen by the even-numbered districts shall go out of 
office at the expiration of the second year, and thereafter the 
Senators shall be chosen for the term of two years. 

The senators in the odd-numbered districts are elected 
in the even years, and the Senators in the even-numbered 
districts in the odd years. 

SECTION VI. 

1 No person shall be eligible to the legislature who shall not 
have resided one year within the state, and be a qualified elector 
2 in the district which he may be chosen to represent. 

1 If a person is a qualified elector, he must have re- 
sided one year within the state (III. 1), so that this is 
superfluous. 

2 Every member of the legislature must be a resident 
of the district which he is chosen to represent ; so that 
he shall represent it fairly, as he might not do if he did 
not live there. 

SECTION VII. 

1 Each house shall be the judge of the elections, returns, and 
qualifications of its own members, 2 and a majority of each shall 
constitute a quorum to do business ; but a smaller number may 
adjourn from day to day and may compel the attendance of ab- 
sent members, in such manner and under such penalties as each 
house may provide.* 

* This section is taken, word for word, from the first clause of Art. I, Sec. 
5. in the U. S. constitution. 



Constitution of Wisconsin. 59 

1 If there is any question as to whether any person 
elected to either house of the legislature was legally 
elected, the house to which he claims to belong, must 
judge of the facts in the case. If he was elected by 
fraud, or if false returns were made declaring that he 
had the majority, when he did not really have it; or if 
he is not legally qualified to be a member of that house, 
then the Assembly or the Senate, as the case may be, is 
bound to reject him, and receive the candidate who had 
the next highest number of votes. But each house is 
the sole judge of the election and qualifications of its 
members. If it decides wrongly there is no remedy un- 
der the constitution. The election or qualification of a 
senator or assemblyman cannot be inquired into by the 
courts under a writ of quo warranto, as can that of a 
state or county officer, (VII. 3). 

"A quorum is a sufficient number to do business. The 
constitution provides that at least half the members of 
either houso must be present before any business can be 
done; that is, a majority makes a quorum. But if there 
were no exception to this, it would continually happen 
that there would be no quorum; because a majority of 
the members mio-ht stav awav, either through careless- 
ness or purposely, to prevent any business being done. 
The constitution, therefore, provides that any number of 
members may meet and call the roll and adjourn again, 
so as to keep up the organization; and they may, if 
necessary, arrest the absent members, and compel them 
to come in, and thus make a quorum. The sergeant-at- 
arms, of each house, with his assistants, is always sent to 
arrest absent members. 

Upon the final passage of any financial bill, three- 



60 Constitution of Wisconsin. 

fifths of all the members elected to either house are re- 
quired to constitute a quorum. (VIII, 8.) 

SECTION VIII. 

Each house may ] determine the rules of its own proceedings, 
2 punish for contempt and disorderly behavior, 3 and with the 
concurrence of two-thirds of all the members elected, expel a 
member; but no member shall be expelled a second time for 
the same cause. 

1 The rules of each house may be found in any legisla- 
tive manual. They are very nearly the same as those 
adopted by other state legislatures and by congress. 
Many of these rules are adopted by all public meetings, 
and by societies of every sort. Others of them are only 
fitted for law-making bodies, and therefore, are only 
adopted by legislatures and by congress. Together, 
these rules are called the rules of parliamentary prac- 
tice, because they gradually grew up in the practice of 
the English parliament, from which they have been 
adopted, with slight changes, by every legislative body in 
the United States. 

Under this section, either the Senate or Assembly can 
alter any of these rules, or make new ones for itself, 
whenever it chooses. And the rules of the Senate and 
of the Assembly need not be the same. Each house 
makes its own rules. 

2 Rules would be of no use unless there was some 
power to enforce them and to punish for disobedience* 
Therefore, each house has the right, not only to make 
the rules of its own proceedings, but to punish those 
who violate these rules. And this power extends to 
any one, whether a member of the house or not, who 
disturbs its proceedings, or who is guilty of what is 



Constitution of Wisconsin, 61 

called "contempt." This power is the same as that 
which all courts of law exercise. If any one should 
refuse to testify before a committee of the legislature, 
when he is summoned to do so, that would be " con- 
tempt." Or if any one, whether a member or not, 
should insult either house by words or actions done in 
the presence of the house, or should refuse to obey 
any proper command of the officers of either house, it 
would be " contempt." But it would not be considered 
contempt to say or to write or print anything, however 
severe, against the legislature, anywhere else. To 
punish any one for words spoken or published outside 
the legislature itself, would be to violate the freedom of 
speech guaranteed by art. I, sect 3, of this constitu- 
tion. iVn attempt to bribe a member or to threaten 
him into supporting or opposing any measure before 
the legislature, is " contempt." An attempt to arrest 
a member of the legislature, contrary to section 15 of 
this article, is " contempt." 

The punishments which either house of the legislature 
can inflict for contempt or disorderly behavior, are repri- 
mand, fine and imprisonment, and for members, expulsion. 

3 Each house has a right to keep up its moral character 
and its respectability, by expelling members who are 
notoriously unworthy. But this power might easily be 
abused for partizan purposes. Therefore, it is guarded 
by two provisions: first, to expel a member requires the 
votes of two-thirds of all the members elected; and, 
second, if the expelled member should be re-elected, he 
cannot be expelled a second time for the same offense, 
as a member of either house of congress may be. (U. 
S. Const. I, 5) 



62 Constitution of Wisconsin. 

SECTION. IX. 

1 Each house shall choose its own officers, 2 and the Senate shall 
choose a temporary President, when the Lieutenant Governor 
shall not attend as President, or shall act as Governor. 

1 The officers of the Senate are the President, Chief 
Clerk and Sergeant-at-Arms. The officers of the assem- 
bly are the same, except that the presiding officer is 
called the Speaker. These officers are elected by each 
house, except the President of the Senate when the 
Lieutenant Governor fills that place. 

2 The Lieutenant Governor is, by virtue of his office, 
President of the Senate (V, 8.), but he cannot act as 
Governor and as Lieutenant Governor at the same time. 
When he acts as Governor, or in any other way vacates 
his office, or is absent from the Senate chamber, there 
must be somebody to act as the presiding officer of the Sen - 
ate. The Senate, therefore, elects a temporary president 
from its own members, in such cases, and it has 
become the practice for the Senate at the beginning of 
the session to elect a President pro tempore, w T ho pre- 
sides whenever the Lieutenant Governor is absent. 

SECTION X. 

1 Each house shall keep a journal of its proceedings, and pub- 
lish the same, except such parts as require secrecy. The doors 
of each house shall be kept open, except when the public wel- 
fare shall require secrecy. 2 Neither house shall, without the 
consent of the other, adjourn for more than three days. 

1 Each house must keep a journal of its proceedings, 
and publish it, for two reasons: first, for convenience; 
so that it can be referred to when needed, to see what 
business has been done, and what still remains to be 
done; and second, for public information. Keeping the 



Constitution of Wisconsin. 63 

doors of each house open answers the latter purpose 
also. Any one who chooses can listen to the debates, 
and, moreover, the reporters of the daily papers make 
every one who reads their reports virtually a hearer of 
the debates and votes. By those means, the people 
watch their representatives. 

But it may happen, in case of war or sedition, that 
the public safety requires secrecy; and there may possi- 
bly be some other cases in which it would not be well to 
have the proceedings made public at once. In such a 
case an exception may be made to the general rule of 
publicity, and either house may sit with closed doors, 
and refuse to publish its proceedings. 

2 If either house could adjourn when it pleased, for 
any length of time, one house or the other might stop all 
business. Like a baulky team, first one and then the 
other might refuse to pull. But as the members of our 
legislature are now paid by the year, instead of by the 
day, it is their interest to finish business as fast as pos- 
sible, instead of adjourning from day to day, to hinder 
legislation. 

An adjournment for two or three days is frequently 
made, so that members can go home and stay over Sun- 
day, or over some holiday. But for an adjournment of 
more than three days a joint resolution, passed by both 
houses, is necessary. 

SECTION XI. 

The legislature shall meet at the seat of government, at such 
time as shall be provided by law, once in each year, and no 
oftener, unless convened by the Governor. 

The time for the meeting of the legislature is the 
second Wednesday in January. The legislature can 



64 Constitution of Wisconsin. 

not adjourn to meet in special session, as congress can. 
"When it has finished its business, it must adiourn sine 
die (without a day fixed for meeting again) ; and it can 
only be called together again by the Governor — and 
that only on extraordinary occasions. (V. 4.) 

SECTION XII. 

No member of the legislature shall, during the term for which 
he was elected, be appointed or elected to any civil office in the 
state which shall have been created, or the emoluments of which 
shall have been increased, during the term for which he was 
elected. 

This is taken from the United States constitution (J. 
6, clause 2) and has the same reason — to prevent any 
influential member of the legislature having an office 
created or made more valuable, and then securing his 
own appointment or election to that office. 

It is only civil office, however, which is thus re- 
stricted; for it might easily happen, as it did during our 
civil war, that the services of some members of the 
legislature are needed in military offices. 

But this restriction does not cover the case of any 
member of the legislature after he is elected to any 
office having the salary of that office raised. It was an 
oversight in the framers of both constitutions not to 
provide against this contingency. 

SECTION XIII. 

No person being a member of congress, or holding any mili- 
tary or civil office under the United States, shall be eligible to a 
seat in the legislature ; and if any person shall, after his election 
as a member of the legislature, be elected to congress, or be ap- 
pointed to any office, civil or military, under the government of 
the United States his acceptance thereof shall vacate his seat. 

This is meant to make the members of the legisla- 



Constitution of Wisconsin. 65 

ture entirely independent of federal influence. They 
are to represent this state — not the United States. A 
member of congress, or a federal office-holder, would bo 
likely to be influenced by the United States govern- 
ment. There is a further provision (XIII, 3,) which pro- 
hibits any United States officers (except postmasters), 
or the officers of any foreign power, from holding any 
office under this state. By comparing these two sec- 
tions we see that postmasters may hold any office under 
the state ; but cannot be elected to the legislature. 
Strictly speaking, the members of the legislature are 
not officers of the state, but representatives. 

SECTION XIV. 

The governor shall issue writs of election to fill such vacan- 
cies as may occur in either house of the legislature. 

Vacancies in the legislature may occur through death, 
resignation or expulsion, or acceptance of a seat in con- 
gress or a United States office. When a vacancy occurs the 
governor must set a day for a new election. The per- 
son elected on that day holds office for the unexpired 
term only. 

SECTION XV. 

Members of the legislature shall, in all cases except treason, 
felony, and breach of the peace, be privileged from arrest ; nor 
shall they be subject to an}- civil process, during the session of 
the legislature, nor for fifteen days next before the commence- 
ment and after the termination of each session. 

This is a privilege granted to the members of all legis- 
lative bodies in this country and in Europe. By the Unit- 
ed States constitution (I, 6,) senators and representatives 
are privileged from arrest in all cases except for treason, 



66 Constitution of Wisconsin. 

felony, or breach of the peace, "during their attendance at 
the session of their respective houses, and in going to and 
returning from the same."* Members of the Wisconsin 
legislature may be arrested for the same crimes as con- 
gressmen, at any time and place. But this section of 
the constitution gives members of the legislature greater 
privileges. They are privileged from arrest for any other 
offense than treason, felony or breach of the peace, dur- 
ing their whole term of office; and they cannot be sued 
during the session of the legislature, nor for fifteen days 
before or after it. 

Treason is defined by this constitution (I, 10,) to con- 
sist only in levying war against the state, or in adhering 
to its enemies. Felony is any state's prison offense. 
Breach of the peace is any act that disturbs public order 
— such as assault and battery or indecent behavior of 
any kind. 

SECTION XVI. 

No member of the legislature shall be liable in any civil ac- 
tion or criminal prosecution whatever, for words spoken in 
debate. 

This is also a privilege given to the members of all leg- 
islative bodies everywhere.f There must be complete 
freedom of speech about measures and about men, in 
the debates of the legislature, so that the public good 
shall be best subserved. 

* The privilege of members of congress from arrest includes also their 
privilege from any summons or civil process, during the session and in goirg 
and returning, though not stated in so many words in the U. S. constitution. 

tSee U. S. Constitution, I, 6, clause 1. 



Constitution of Wisconsin* 67 

SECTION XVII. 

1 The style of the laws of the state shall be : " The people of 
the state of Wisconsin, represented in Senate and Assembly, do 
enact as follows ;" - and no law shall he enacted except by bill. 

1 All the laws of Wisconsin begin in these words: " The 
people of the state of Wisconsin, represented in Senate 
and x\ssembly, do enact as follows." The form in which 
every law must begin, thus shows that the legislature is 
to represent the people of the state. 

1 The congress of the United States frequently passes 
joint resolutions of both houses, which have the effect 
of laws. These must, however, be signed by the presi- 
dent in the same way as bills, (U. S. Const., I, ?). But 
this is forbidden to the Wisconsin legislature by this 
section. All laws must be passed in the form of bills; 
but amendments to the constitution are passed in the 
form of joint resolutions. So also are memorials to con- 
gress. And either house, or both together, may pass 
any resolutions they choose that only express their 
opinions, without having the force of laws. Such reso- 
lutions, having no legal force, do not need the gover- 
nor's signature. 

SECTION XVIII. 

No private or local bill, which may be passed by the legisla- 
ture, shall embrace more than one subject, and that shall be 
expressed in the title. 

This is to prevent three practices very common in 
congress and in many state legislatures. The first is 
that of tacking some private or local bill, which could 
not pass if attention was called to it, on some other bill 
to which nobody has any objections, and thus slipping 
it through the various readings and votes before it is 



68 Constitution of Wisconsin. 

noticed. The second is the practice of combining sev- 
eral private or local schemes in one bill and thus each 
getting the support of all the members who would sup- 
port any one of them. The third is the practice of 
slipping through objectionable measures by an innocent 
looking title that does not call attention to the main 
object of the bill.* 

The amendment to this article (sections 31 and 32,) 
stops a great deal of this special legislation, but this 
section still applies to all local or private bills that are 
not prohibited by that amendment. 

SECTION XIX. 

1 Any bill may originate in either house of the legislature; 
2 and a bill passed by one house may be amended by the other. 

1 In congress all bills for raising revenue must origin- 
ate in the House of Representatives. This restriction 
is abolished for our state legislature, and bills may 
originate, that is, be first brought in and passed in either 
house. 

If a bill that passes one house is amended in the other, 
it is sent back to the house in which it originated, where 
the amendment is considered. If this house concurs in 
the amendment, both houses are then agreed on the bill, 
and it goes to the governor for his signature or veto. 
But if the first house does not concur in the amendment, 
a committee of conference is appointed from each house, 
who meet and try to come to some agreement, until both 

* " Chapter 269, Private and Local Laws of 1870, which had for its sole ob- 
ject to legalize certain proceedings .of the common council of Janesville, but 
is entitled, " An act to legalize and .authorize the assessment of street im- 
provements, 1 ' is invalid because it does not show the locality to -which it 
applies, and, therefore, does not " express the subject 11 thereof within the 
meaning of section 18, article 4, of the state constitution. 11 (Wis. Reports, 
Vol. xxvi, p. 69T.) 



Constitution of Wisconsin. 69 

houses either agree on something, or find that they can- 
not agree. In this latter case, of, course, the bill is lost. 

SECTION XX. 

The yeas and nays of the members of either house, on any 
question, shall, at the request of one-sixth of those present, be 
entered on the journal. 

This differs from a like provision in the United States 
constitution (1, 5, clause 3,) in requiring only one-sixth of 
those present, instead of one-fifth, to call for the yeas 
and nays. When the yeas and nays are called for, if 
one-sixth of those present concur in the call, the roll of 
members is called over by the clerk, and each member 
who is present answers in his turn, u aye " or " no." 
The names of those voting on each side of the question 
arc recorded by the clerk in the journal, and published. 
The yeas and nays are very frequently called for in our 
legislature, and the result is always published in the 
leading newspapers, so that any one who chooses to know, 
can always tell how any member of the legislature voted 
on any important question. 

The yeas and nays must be taken in the following 
cases: 

1. In each house, upon the passage of a bill creating a 
state debt. (VIII, 6.) 

2. In each house, upon the passage of any financial 
measure. (VIII, 8.) 

3. In each house, upon the passage of a bill over the 
governor's veto. (V, 10.) 

4. In each house, upon the passage of a proposed 
ameudment to the constitution. (XII, 1.) 

In these cases, it is only upon the final passage of 



*]o Constitution of Wisconsin. 

these measures that the vote must be taken by yeas and 
nays, and entered upon the journal. 

5. But the yeas and nays may be called for upon any 
vote that is taken upon any question; and if the call is 
sustained by one-sixth of those present, the vote must 
be taken by yeas and nays, and entered upon the journal. 
(IV, 20.) 

6. All elections made by the legislature must be made 
by a viva voce vote, which is similar to the vote by yeas 
and nays, the only difference being that each member 
announces the name of the candidate for whom he votes, 
instead of saying " aye " or " no." In both cases the 
votes are entered upon the journal, (IV, 30.) The only 
exception to this is in case an election for governor 
should go to the legislature, in which case the election is 
by joint ballot. (V, 3.) 

SECTION XXI. 

! Each member of the legislature shall receive for his services 
three hundred and fifty dollars per annum, and ten cents for 
every mile he shall travel in going to and returning from the 
place of meetings of the legislature, 2 on the most usual route. 
In case of an extra session of the legislature, no additional 
compensation shall be allowed to any member thereof, either 
directly or indirectly.* 

*As the members now receive an annual salary, it is 
their interest to get through with business as soon as 
possible, and it is not their interest to have extra ses- 
sions. 

2 The mileage is to be calculated upon the most usual 
route, to prevent members going a long distance out of 

*This section was amended November 5, 1867. Before that it was as fol- 
lows: "Each member of the legislature shall receive for his services-, two 
dollars and fifty cents for each day's attendance during the session, and ten 
ceurs for every mile he shall travel in going to and returning from the Dlace 
of the meeting of the legislature on the most usual route. 1 ' 



Constitution of Wisconsin. 71 

their way on business or for pleasure, and getting mile- 
age for that extra travel. 

SECTION XXII. 

The legislature may confer upon the boards of supervisors 
of the several counties of the state, * 2 such powers, of a local, legis- 
lative and administrative character, as they shall from time tc 
time prescribe. 

1 The board of supervisors consists now in each county 
of the chairmen of the town boards and a supervisor 
elected by each incorporated village and by each ward 
of a city. They elect their own chairman, and the 
county clerk acts as their clerk. 

2 The legislature has given the boards of supervisors 
a great many powers of a local character, of which only 
a few of the most important can be here specified: 

1. They have charge of all the buildings # and other 
property of the county. 

2. They examine and settle all accounts against the 
county. 

3. They fix the salaries of county officers, within the 
limits prescribed by law, 

4. They apportion taxes among the various towns, vil- 
lages and wards in the county, and they levy all taxes 
needed to pay the expenses of the county government. 

5. They may change the name of any person, town or 
village in the county. 

(J. They may change the boundaries of any town or 
village in the county. 

7. They may incorporate literary, benevolent, charit- 
able and scientific institutions. 

8. They may grant charters for ferries and plank and 
turnpike roads, and fix the rates of toll. 



72 Constitution of Wisco?i$in. 

SECTION XXIII. 

The legislature shall establish but one system of 2 town and 
1 county goverment, 3 which shall be as nearly uniform as prac- 
ticable. 

« Like the state government, the county government 
consists of legislative, executive, administrative and 
judicial officers. 

The board of supervisors is the county legislature, 
with the powers named in he notes to the last section. 

The executive officers of a county are sheriff and cor- 
oner. 

The administrative officers are clerk, treasurer, regis- 
ter of deeds, surveyor, district attorney and school su- 
perintendent. 

The judicial officers are county judge, clerk of the 
circuit court and one or more court commissioners 
The powens and duties of these officers are given else- 
where; those of the executive and administrative officers 
under Article VI, section 4, and those of the judicial 
officers under Article VII, sections 12, 14 and 23. 

a The town government is simpler than either county, 
state or national. The legislature consists of all the 
voters in the town, who meet on the first Tuesday in 
April, hear reports of officers, vote taxes for schools, 
for roads and bridges, for the poor and for such other 
town purposes as may be necessary; make such orders 
and by-laws for governing the town as they think neces- 
sary, and elect the following officers by ballot: 

1. A town board of supervisors, consisting of three 
members, who enforce all orders and by-laws of the town, 
audit all accounts, fill all vacancies in town offices, and 
act as trustees of the town property. The chairman 
represents the town in the county board. 



Constitution of Wisconsin, 73 

2. A town clerk. 

3. A town treasurer, who collects taxes and keeps the 
money of the town subject to the order of the super- 
visors. 

4. An assessor, who takes a list of all the taxable 
property in the town, with the value of it. 

5. Four constables. 

6. Four justices of the peace, of whom two are elect- 
ed every year. 

7. Overseers of highways, who need not be elected 
by ballot unless the voters please to do so. 

The town government is almost a pure democracy. 
The voters of each town assemble and discuss all matters 
of common concern, and decide them by a majority vote. 
But it is found to be impossible, even in so small a ter- 
ritory as a single town, for the voters in a body to do all 
the administrative, executive and judicial business of 
the town. For this, they have to elect officers; but the 
voters are thehiselves the legislature of the town. 

' This system of town and county government has 
been changed several times by the legislature. County 
superintendents of schools have been substituted for 
town superintendents. The composition of the county 
board of supervisors has been twice changed; but these 
changes have been uniform throughout the state. When- 
ever the legislature has given one county a system of 
government in any respect different from the rest, the 
supreme court has decided the act to be unconstitutional.* 

* " An act providing for a county board of eight supervisors in a certain 
county, which under the general statute relative to county government would 
have only three, is in conflict with section 23, article 4, of Ihe state constitu- 
tion." (Wis. Reports. Vol. xxiv, p. 484.) 

11 Sec. 23, art. iv, of our state constitution, which provides that the legisla- 
ture shall establish but one system of town and county government, and 
that this 'shall be as nearly uniform as possible,' is mandatory; and the 



74 Constitution of Wisconsin. 

SECTION XXIV. 

1 The legislature shall never authorize any lottery, 2 or grant 
any divorce. 

1 This prohibits all lotteries. The legislature can 
neither itself legalize a lottery nor give power to any 
state, county, city, village or town officers to authorize 
a lottery. What the legislature cannot do itself, it 
might be constitutional for it to empower some one else 
to do, as is the case with divorces, which the legislature 
itself cannot grant, but which it has authorized circuit 
judges to grant. But in this case, the legislature is not 
allowed to authorize a lottery. To allow anybody else 
to give power for a lottery, would be just as much an 
authorizing of lotteries as if the legislature should itself 
grant licenses to them, only it would be doing it indi- 
rectly instead of directly. 

Gift enterprises of all sorts have been often decided by 
the courts to be lotteries, and are therefore contrary to law. . 

2 Divorces are granted by the circuit judges at the 
regular term of court, for the causes named in the laws. 
The legislature cannot itself grant any divorce, but it 
has passed a general law under which divorces can be 
granted by the courts, for certain specified causes. 

SECTION XXV. 

The legislature shall provide by law that all stationery re- 
quired for the use of the state, and all printing authorized and 
required by them to be done for their use, or for the state, shall 
be let by contract to the lowest bidder ; but the legislature may 
establish a maximum price. 2 No member of the legislature, or 
other state officer shall be interested, either directly or indirectly, 
in any such contract. 

court must declare invalid any enactment in violation thereof. 11 (Wis. Ee- 
ports, Vol. xxx, p. 541.) 

The act establishing the office of county auditor, for the county of Milwau- 
kee only, is, therefore, invalid. 



Constitution of Wisconsin. 75 

1 This is to prevent any frauds in the state printing. 
It cannot be given as a reward for party sei vices, but 
must be given to the person who will do the work the 
cheapest. "A maximum price " means the highest 
price which will be given. The legislature may say 
that no more than so much will be paid in any case, to 
prevent a combination of printers to keep prices up. 

2 Members of the legislature and state officers are for- 
bidden to have any interest in contracts for state print- 
ing, so that there shall be no suspicion of any corrupt 
bargains, or fraud of any kind. 

SECTION XXYI. 

The legislature shall never grant any extra compensation to 
any public officer, agent, servant, or contractor, after th^ services 
shall have been rendered or the contract entered into. Nor shall 
the compensation of any public officer be increased or dimin- 
ished during his term of office. 

This is to make public officers and contractors entirely 
independent of the legislature. Having nothing to hope 
or to fear in the way of salary, they will be more likely 
to do their work faithfully. 

SECTION XXYII. 

The legislature shall direct by law in what manner and in 
what court suits may be brought against the state. 

It has been provided by law that no person can sue 
the state for any claim he has against it, until he has pre- 
sented it to the legislature and they refuse to allow it. 
He must notify the attorney general, who is the state 2 s 
lawyer, and who must defend the state in the trial of the 
case. The case is tried before the supreme court so far 
as the law of the case is concerned. If the facts have 



76 Constitution of Wisconsin. 

to be proved, the case is sent down to some circuit court 
where it is tried before a jury, who decide upon the 
facts, as in any civil suit, and their judgment is sent up 
to the supreme court, and a verdict rendered in accord- 
ance with the facts as decided by the jury, and the law 
as interpreted by the supreme court. 

SECTION XXVIII. 

Members of the legislature, and all officers, executive and 
judicial, except such inferior officers as may be by law exempted, 
shall, before they enter upon the duties of their respective offices, 
take and subscribe an oath or affirmation to support the consti- 
tution of the Untted States, and the constitution of the state of 
Wisconsin, and faithfully to discharge the duties of their re- 
spective offices to the best of their ability. 

The oath is taken unless the officer has conscientious 
scruples against taking an oath; in that case, he simply 
affirms instead of swearing. 

SECTION XXIX. 

The legislature shall determine what persons shall constitute 
the militia of the state, and may provide for organizing and 
disciplining the same, in such manner as shall be prescribed 
by law. 

There are several militia laws upon the statute books, 
but they are not enforced. In theory, all the able-bodied 
males in the state, between the ages of eighteen and 
forty-five, who are not specially exempted, belong to the 
state militia. In actual practice, the state militia con- 
sists of the governor's staif and the volunteer compa- 
nies organized in several of the cities and villages. 

A volunteer company may be formed anywhere in the 
state, where sixty-five persons subject to military duty 
wish to be organized into a military company. They 
elect their own officers annually. They are exempt from 



Constitution of Wisconsin. 77 

poll tax and jury duty, and are liable to be called out by 
the governor and other officers, in case of war, insurrec- 
tion, riot or resistance to the laws. In case of war, vol- 
unteers may be called for, and if enough do not volun- 
teer, a draft may be ordered. The soldiers who then 
volunteer or are drafted, may serve under the authority 
of the state, or they may be sworn into the United States 
service. 

SECTION XXX. 

1 In all elections to be made by the legislature, the members 
thereof shall vote -viva voce, aud their votes shall be entered on 
the journal. 

1 The legislature elects the United States senators from 
this state, and each house elects its own officers, except 
the president of the Senate, when the lieutenant-gover- 
nor fills that place. 

The elective officers of each house are : for the Sen- 
ate, the president pro teni*, chief clerk and sergeant-at- 
arms; and for the Assembly, the speaker, chief clerk 
and sergeant-at-arms, (XIII, 6). The other officers are 
appointed. 

2 Vtva voce means, literally, " with the living voice." 
A viva voce rote is one in which those who vote, do so 
with their voice, not by ballot, or by a show of hands, 
or by rising. 

The object of having the vote viva vcce, and having 
each vote entered on the journal, is to make it public, 
and, therefore, as fair as possible. 



78 Constitution of Wisconsin. 

SECTION XXXI. 

{Adopted at the general election, Nov. 7, 1871.) 

The legislature is prohibited from enacting any special or pri- 
vate laws in the following cases : 1st. For changing the name of 
persons, or constituting one person the heir-at-law of another. 
2d. For laying out, opening or altering highways except in cases 
of state roads extending into more than one county, and military 
roads, to aid in the construction of which lands may be granted 
by congress. 3d. For authorizing persons to keep ferries across 
streams, at points wholly within this state. 4th. For authoriz- 
ing the sale or mortgage of real or personal property of minors 
or'others under disability. 5th. For locating or changing any 
county seat. 6th. For assessment or collection of taxes, or for 
extending the time for the collection thereof. 7th. For granting 
corporate powers or privileges, except to cities. 8th. For author- 
izing the apportiontment of any part of the school fund. 9th. 
For incorporating any town or village, or to amend the charter 
thereof. 

All these cases can be better provided for each by a 
general law which will cover all cases that will arise, 
than they would be by having the legislature pass a 
special law for every particular case. For instance, it 
is a great deal better to give the business of changing 
people's names to the county board or the county judge, 
and not trouble the legislature with it. The result of 
special legislation always is to cause corruption and 
bribery of members and indiscriminate haste in passing 
laws, and to burden the statute books with a great num- 
ber of private and local laws. The legislature is made 
the theater of contending local or private interests, to 
the exclusion of measures of great public utility, but in 
which no one is pecuniarily interested. The experience 
of this and other states has, therefore, shown that the 
public good will be best promoted by excluding as much 
special legislation as possible. 

In addition to the nine cases named in section 31, 
the constitution forbids special laws in the following 
cases: 



Constitution of Wisconsin. 79 

1. No bill of attainder can be passed; that is, a bill 
punishing particular persons by name. (I, 12.) 

2. No preference can be given by law to any par- 
ticular religious establishment or mode of worship. 
(I, 18.) 

3. There can be but one system of town and county 
government. (IY, 23.) 

4. The legislature can grant no divorce (IY, 24). 

5. The state printing must be given to the lowest bid- 
der (IY, 25). 

6. Officers cannot receive extra pay (IY, 26). 

7. The rule of taxation must be uniform (YIII, 1). 

8. The supreme court has decided that acts of the 
legislature exempting particular persons or corporations 
from any general law are void.* 

SECTION XXXII. 

{Adopted at the general election, Nov. 7, 1871.) 

The legislature shall provide general laws for the transaction of 
any business that maybe prohibited by section thirty-one of this 
article, and all such laws shall be uniform in their operation 
throughout the state. 

The legislature has provided general laws for all these 
cases. 

*As a rule, acts of the legislature exempting particular individuals, or cor- 
porations by name, from the operation of general laws, are not within the 
proper scope of the legislative power, and are void. (Wis. Reports, vol. xxx, 
p. 464.) 



So 



Constitution of Wisconsin. 



ARTICLE V. 



EXECUTIVE. 



O 

g 

S 
> 

o 



Sec. 



1. Term op Office, two years, 

Citizen of United States, - 
Qualified elector of state, - 

By the Elect- j Time— general election, - 

ors. | Plurality elects, - 

By the Legisla- s Time, 3 

ture. ! Manner, 3 



2. Eligibility. 



3. Election. 



t ture. 
4. Returns of Election, - 
Military, 



Powers and 
Duties. 



Civil. 



6. Salary, 



f Convo- 

With Legisla- J cation, 4 

ture. 1 Message, 4 

[ Veto, 10 

Administrative, - - - 4 

Pardons and reprieves, - 6 

5 



How Remova- 
ble. 



Permanently. 



Temporarily. 



Replaced by 



By impeachment and con- 
viction, .... 

By death, - - 

^ By resignation, 
i By impeachment, 
■< By disease, 
( By absence from the state, 

Lieutenant Governor, 

Secretary of State, 



> i 

o 

o 



Eligibility, same as Governor, 2 

Election, same as Governor, 3 

Removal, same as Governor, 8 

n . TTT1?q J President of Senate, 8 

duties. "j Acting Governor, 7 

Salary, 8 



SECTION I. 

! The executive power shall be vested in a governor who shall 
hold his office for two years. 2 A lieutenant governor shall be 
elected at the same time, and for the same term. 

1 The executive power is vested in one man rather than 
in a committee or board, because experience has shown 
that one man who has the whole responsibility will be 
more efficient in carrying out the laws than several to- 
gether would be. "When laws are to be made, it is better 



Constitution of Wisconsin. 81 

to have them considered by a number of persons, so as 
to get the wisdom of all. But where laws are to be en- 
forced, it is better to give all the responsibility to one 
man, so that what is to be done can be done speedily 
and thoroughly. Wisdom is needed in making the laws, 
and that is secured by having a large legislature; but 
energy is needed in carrying out the laws, and that is 
secured by having a single executive. 

2 The president holds his office for four years. The 
governor of Wisconsin holds his office for two years only. 
He can, however, be re-elected as many times as the 
people choose to make him governor. No governor has 
yet served longer than six years. 

3 The lieutenant governor is elected like the vice pres- 
ident, for the same term as his chief. This is because 
he may be called on to take his place. 

SECTION II. 

1 No person, except a citizen of the United States and a quali- 
fied elector of the state, shall be eligible to the office of * governor 
or lieutentant governor. 

1 No person can be president or vice president of the 
United States who is not a native born citizen. But a 
foreigner who has been naturalized is eligible to the 
office of governor or lieutenant governor. A foreigner 
can vote, after he has been here a year, if he takes out 
his papers declaring his intention to become a citizen of 
the United States, but he cannot be elected governor, 
lieutenant governor, or judge of the circuit or supreme 
courts until he becomes a citizen. 

2 The lieutenant governor must have the same quali- 
fications as the governor, because he is frequently made 
acting governor by reason of the governor's sickness or 



$2 Constitution of Wisconsin. 

absence from the state; and he would be made governor 
should the governor die, resign, or be removed upon an 
impeachment. He must have the same qualifications as 
the governor because he may have to take the governor's 
place. 

SECTION III. 

! The governor and lieutenant governor shall be elected by the 
qualified electors of the state, at the times and places of choosing 
members of the legislature. 2 The persons respectively having 
the highest number of votes for governor and lieutenant gover- 
nor shall be elected. But in case two or more shall have an 
equal and the highest number of votes for governor or lieuten- 
ant governor, the two houses of the legislature, at its next an- 
nual session, shall forthwith, by joint ballot, choose one of the 
persons so having an equal and the highest number of votes for 
governor or lieutenant governor. The returns of election for 
go/ernor and lieutenant governor shall be made in such manner 
as shall be provided by law. 

*As the governor and lieutenant governor hold office 
for two years, it is only every other year that an elec- 
tion for governor and lieutenant governor occurs. This 
election is in the odd years, while the election for mem- 
bers of congress comes in the even years, and the presi- 
dential election comes in the leap years. 

2 In the election of president and vice president, a 
majority of all the rotes cast by the presidential elec- 
tors is necessary to a choice (U. S. const. Amendment 
XII), so that if there are three or more candidates, it 
may very well happen that none of them receives a ma- 
jority. But the state constitution provides that a plu- 
rality shall elect, so that it does not matter how many 
candidates there may be for the office of governor or 
lieutenant governor, the person who has the highest 
number of votes, although that may not be a majority of 
all, is elected. It is not at all likely, but it is barely 



constitution of Wisconsin. 83 

possible, that there may be a tie vote. In that case, 
should it ever occur, the legislature must decide be- 
tween the two or more candidates who received an equal 
and the highest number of votes. This must be done 
by joint ballot of the two houses of the legislature. In 
a joint ballot, both houses sit together as if they were 
one, and each member has one vote. If they do not 
choose the governor or lieutenant governor on the first 
ballot, they must keep on balloting until they do elect 
one or the other of the candidates. This must be the 
first business of the legislature after organizing. The 
word "forthwith" in this section requires that. 

SECTION IV. 

1 The governor shall be ' 2 commander-in-chief of the military 
and naval forces of the state. 3 He shall have the power to con- 
vene the legislature on extraordinary occasions; and in case of 
invasion, or danger from the prevalence of contagious disease at 
the seat of the government, he may convene them at any other 
suitable place within the state. 4 He shall communicate to the 
legislature, at every session, the condition of the state, and rec- 
ommend such matters to them for their consideration as he may 
deem expedient. 5 He shall transact all necessary business with 
the officers of the government, civil and military. *He shall ex- 
pedite all such measures as may.be resolved upon by the legisla- 
ture, and shall take care that the laws be faithfully executed. 

1 This section contains a summary of the powers and 
duties of the governor, except the power of pardon and 
the veto power ; for which, see sections 6 and 10. An 
analysis of all the powers and duties of the governor is 
given at the beginning of this article. 

It is well to notice that the governor of Wisconsin 
does not have some powers which the president has. 
He has no power to make treaties, because the state of 
Wisconsin is not an independent nation, and, therefore, 
cannot make treaties through any branch of its govern- 



84 Constitution of Wisconsin. 

nient. For the same reason he does not appoint ambas- 
sadors or consuls. He does not appoint the judges or 
the heads of the state departments ; for these, in Wis- 
consin, are elected by the people. And his power of 
granting pardons is limited. 

2 As the president is commander-in-chief of the mili- 
tayr and naval forces of the United States, so is the 
governor commander-in-chief of the military and naval 
forces of the state of Wisconsin. The state does not 
yet have any naval forces, although it is possible for it 
to have ships of war upon lake Michigan and the Mis- 
sissippi river, if congress should consent to it (U. S. 
const. I, 10). But the state has no use for a navy ; be- 
ing protected against foreign enemies by the whole 
power of the United States. 

The military forces of the state consist in time of 
peace, of the various volunteer companies which are or- 
ganized under the state military laws. In time of war, 
the state military forces consist, in addition to the regu- 
lar militia, of the volunteer and drafted soldiers who are 
enlisted for that special occasion. These are usually 
sworn into the service of the United States, and are then 
no longer under the authority of the governor, but under 
that of the president. Their officers, however, are ap- 
pointed by the governor, even while they are in the 
service of the United States, by virtue of article I, sec- 
tion 8 of the United States' constitution. 

s The governor may call a special session of the legis- 
lature whenever, for any reason, their action is needed, 
and cannot be put off until the regular session. 

In case of invasion, when the enemy's army has taken 
or is likely to take the capitol, or when a contagious 



Constitution of Wisconsin. 85 

disease makes the capital a dangerous place, he can call 
the legislature at either their regular session or a special 
one, to meet at such other place in the state as he thinks 
best. 

4 The governor's message is always sent at the opening 
of the regular session of the legislature. 

The governor gives a brief report of the condition of 
the state, and sends with it the reports of all the different 
state officers and official boards. He gives, also, any 
recommendations that he pleases, which the legislature 
adopts or not, as it chooses. When he calls a special 
session, he must, of course, send a message to the legis- 
lature to inform them why he called them together, and 
what it is that he wishes to have them act upon at that 
special session. 

5 The governor acts as representative of the state, and 
as such must transact aH necessary business with the 
officers of the state. He also represents the state in all 
its business with other states or with the United States, 
except where some other officer is expressly named to 
represent the state for certain purposes. 

1 The governor is the executive of the state, and as 
such, he must see that the laws are faithfully executed. 
He has no choice in this matter. Whether he thinks 
that a law is right or wrong, he must see that it is exe- 
cuted. If force is used to prevent the execution of a 
law, he can call on the militia and police forces, and if 
there should be serious resistance to them, he can call 
on the United States army to help him enforce thelaws. 
(U, S. Const. IV, 4.) 



86 Constitution of Wisconsin. 

SECTION V. 

The governor shall receive during his continuance in office, an 
annuaf compensation of five thousand dollars, which shall be in 
full for all traveling or other expenses incident to his duties.* 

The salary of the governor of Wisconsin is five thous- 
and dollars. That of the president of the United States 
is fifty thousand dollars. 

SECTION VI. 

1 The governor shall have power to grant reprieves, commuta- 
tions, and pardons, after conviction, for all offenses, except trea- 
son and cases of impeachment, upon such conditions and with 
such restrictions and limitations as he may think proper, 2 sub- 
ject to such regulations as may be provided by law relative to 
the manner of applying for pardons. 3 Upon conviction for trea- 
son, he shall have the power to suspend the execution of the 
sentence until the case s-hall be reported to the legislature, at its 
next meeting, when the legislature shall either pardon, or com- 
mute the sentence, direct the execution of the sentence, or grant 
a further reprieve. He shall annually communicate to the legis- 
lature each case of reprieve, commutation of pardon granted, 
stating the name of the convict, the crime of which he was con- 
victed, the sentence and its date, and the date of the commuta- 
tion, pardon, or reprieve, with his reasons for granting the same. 

'A reprieve is a delay in the execution of a sentence, 
especially a sentence of death. A commutation of a 
sentence is to change it for one less severe. A pardon 
is a reversal of the sentence ; a pardon stops all further 
punishment, and restores the criminal to his civil rights. 
(See III, 2.) 

From the nature of the case, the governor must have 
almost unlimited power to pardon; for no laws made 
beforehand can cover all the cases that may deserve 
pardon. Therefore, the governor's power to pardon 

* This section is given above as it now stands. It was amended by a vote 
of the people at the general election held Nov. 2, 1869. Previous to that time 
it read as follows : 

" The governor shall receive during his continuance in office, an annual 
compensation of one thousand two hundred and fifty dollars. 1 ' 



Constitution of Wisconsin. 87 

must be discretionary. It is limited, however, in four 
points: 

(1) The legislature prescribes the manner of applying 
to the governor for a pardon. 

(2) In cases of treason, the governor cannot pardon 
absolutely, but only with the concurrence of the legis- 
lature. 

(3) In cases of impeachment he cannot pardon at all. 

(4) And he must report to the legislature all the par- 
dons he grants, and his reasons for granting them. 

2 The manner of applying for a pardon is very care- 
fully prescribed by law, so that only those who deserve 
pardons shall get them. 

3 In cases of treason the governor has no power to 
pardon. He can only suspend the sentence long enough 
for the legislature to act upon it. The governor may do 
this or not, as he chooses. But if he does suspend the sen- 
tence of a person convicted of treason, the legislature 
must act upon it in some way. 

SECTION VII. 

*In case of the impeachment of the governor, or his removal 
from office, death, inability from mental or physical disease, res- 
ignation, or absence from the state, the powers and duties of the 
office shall devolve upon the lieutenant governor, for the residue 
of the term, or until the governor, absent or impeached, shall 
have returned, or the disability shall cease. -But when the gov- 
ernor shall, with the consent of the legislature, be out of "the 
state in time of war, at the head of the military force thereof, he 
shall continue commander-in-chief of the military force of the 
state. 

! The governor may go out of office, either temporarily 
or permanently. He goes out of office tempcrarily in 
case he is impeached (VII, 1), and permanently, should 
he, on the impeachment trial, be found guilty by the 



§8 Constitution of Wisconsin. 

senate. He goes out of office temporarily when he is so 
sick or so out of his right mind that he cannot dis- 
charge the duties of his office ; and permanently in case 
of his death. He goes out of office temporarily when- 
ever he goes out of the state ; and permanently should 
he ever resign. When he goes out of office temporarily, 
the lieutenant governor acts as governor as long as he 
stays out of office ; but when he goes out of office per- 
manently the lieutenant governor becomes governor for 
the rest of the two years for which they were both 
elected. 

The question is not decided by the United States con- 
stitution whether an officer who is impeached is sus- 
pended from his office while under trial. When Presi- 
dent Johnson was impeached, it was decided that a 
United States officer who is impeached, is not, therefore, 
suspended; and the president went on with the duties 
of his office while he was being tried. The framers of 
our state constitution provided that whenever the gov- 
ernor is impeached, he shall be suspended from his 
office during the time of the trial, and the lieutenant 
governor shall act as governor. Judges who may be 
impeached are suspended while under trial (VII, 1). 
The inference is that any other officer who may be im- 
peached will retain his office until he is convicted. 

2 The exception is made, that whenever in time of war, 
the governor goes out of the state to command the state 
troops, he shall still be governor, so far as being com- 
mander-in-chief is concerned. But he can only do this 
with the consent of the legislature; and the lieutenant 
governor will act as governor in every other respect. 



Constitution of Wisconsin. 89 

SECTION VIII. 

'The lieutenant governor shall be president of the senate, but 
shall have only a casting vote therein. 2 If during a vacancy in 
the office of governor, the lieutenant governor shall be impeached, 
displaced, resign, die, or from mental or physical disease become 
incapable of performing the duties of his office, or be absent from 
the state, the secretary of state shall act as governor until the va- 
cancy shall be filled, or the disability shall cease. 

'Just as the vice president is president of the United 
States senate, so the lieutenant governor is president of 
the state senate. He has no vote on ordinary occasions, 
because he is not a member of the senate; but when 
there is a tie vote, on any question, he has then a cast- 
ing vote (or deciding vote); not as a member, but as the 
presiding officer of the senate. 

2 When the lieutenant governor is acting as governor, 
or if he is sick or absent, or if he should be impeached, 
or resign, or die, he cannot, of course, preside in the 
senate. The senate in that case elect one of their own 
number president pro tempore (for the time). The 
president pro tempore has a vote on all questions as a 
member of the senate, but has no casting vote. But 
the president of the senate does not act as governor 
when the governor and lieutenant governor are both in- 
capacitated, as the president of the United States senate 
does when the president and vice president are both in- 
capacitated. This duty comes on the secretary of state, 
who is the next highest elective officer of the state. 

SECTION IX. 

The lieutenant governor shall receive during his continuance 
in office, an annual compensation of one thousand dollars.* 

♦This section is given above as it now reads. Before its amendment in 
1869 it read as follows : "The lieutenant governor shall receive double the 
per diem allowance of members of the senate, for every day's attendance as 
president of the senate, and the same mileage as shall be allowed to mem- 
bers of the legislature. 11 



90 Constitution of Wisconsin. 

The vice president receives a salary of eight thousand 
dollars. 

SECTION X. 

Every bill which shall have passed the legislature shall, before 
it becomes a law, be presented to the governor. If he approve, 
he shall sign it; out if not, he shall return it, with his objections, 
to that house in which it shall have originated, who shall enter 
the objections at large upon the journal and proceed to recon- 
sider it. If, after such reconsideration, two-thirds of the mem- 
bers present shall agree to pass the bill, it shall be sent, together 
with the objections to the other house, by which it shall likewise 
be reconsidered, and if approved by two-thirds of the members 
present, it shall become a law. But in all such cases, the votes 
of both houses shall be determined by yeas and nays, and 
the names of the members voting for or against the bill shall be 
entered on the journal of each house respectively. If any bill 
shall not be returned by the governor within three days (Sundays 
excepted) after it shall have been presented to him, the same shall 
be a law, unless the legislature shall, by their adjournment, pre- 
vent its return ; in which case it shall not be a law.* 

A bill becomes a law as soon as it is signed by the 
governor, or if he refuses to sign it as soon as it is passed 
over his veto. 

"When the governor vetos a bill, his reasons for veto- 
ing the bill must be given in writing, so that they can 
be copied upon the journal of the house that originated 
the bill. They must then vote upon it, and they must 
vote by ayes and noes, so that the vote of every member 
can be recorded. If two-thirds of the members present 
do not agree to pass it, that is the end of the bill. If 
two-thirds of the members present do vote for it, it goes 
to the other house, where the governor's objections are 
entered upon the journal as before, and a vote taken by 
ayes and noes, and recorded as before. If two-thirds of 
the members present do not vote for the bill, the bill is 

* This section is taken with a few slight changes from the United States 
constitution. (1,7.) 



Constitution of Wisconsin. 91 

lost. If two-thirds of them do vote for it, it becomes a 
law. 

The president of the United States has ten days in 
which to consider a bill which has been passed by con- 
gress. The governor has only three days in which to 
consider a bill which has been passed by the legislature. 
In these three days Sundays are not counted, because 
no official business can be done on Sunday. 

During the last three days of the session of the legis- 
lature the governor need not veto a bill that he does not 
wish to become a law. All he needs to do is not to sign 
it, and then it cannot become a law, even if two-thirds 
of each house are ready to vote for it. 

There are four ways \\\ which a bill may be lost : 

1. It may not get a majority in the assembly ; 

2. It may not get a majority in the senate ; 

3. It may be vetoed by the governor and not passed 
over his veto by the legislature ; 

4. It may be " pocketed " by the governor during the 
last three days of the session, 

And there are three ways in which a bill may become 
a law : 

1. It may pass both houses and be signed by the gov- 
ernor ; 

2. It may pass both houses, be vetoed by the gover- 
nor, and be passed over his veto by a two-thirds major- 
ity of each house; 

3. It may pass both houses and the governor may fail 
to sign it within three days, (when these are not at the 
close of the session). 



Q2 



Constitution of Wisconsin. 



ARTICLE VI. 



•4 



© 
o 

« 

Eh 

g 

S 
P 
< 

w 

Eh 



I. Officers, 



II. Eoards, 



III. 



County officers 
who represent 
the state, 



ADMINISTRATIVE. 

Sec. 
f 1. Secretary of State, 1 

2. State Treasurer, - 1 

I 3. Attorney General, 1 

-j 4. Superintendent of Public Instruc- 
tion, - - - . - - X. 1 
I 5. State Commissioner of Immigra- 
L tion (by statute.) 

1. Commissioners for the sale of school 
and university lands, - - X, 8 

2. Regents of State University (by 
statute.) 

I 3. Regents of Normal Schools (by 

statute.) 
J 4. Commissioners of Charities and 
j. Reform (by statute.) 

f Sheriffs, 4 

J Coroners, - 4 

j Registers of Deeds, 4 

t District Attorneys, - - - 4 



In addition to the offices created by this article, the 
office of superintendent of public instruction is created 
by article X, section 1 ; and other state offices have been 
created by acts of the legislature, so that the state ad- 
ministration now consists of the following officers, each 
at the head of a department, and each elected for a term 
of two years:* 

1. The Secretary of State. 

2. The State Treasurer. 

3. The Attorney General. 

4. The State Superintendent of Public Instruction. 

5. The State Commissioner of Immigration. 

In addition to these there are several boards, which 

virtually form a part of the administration of the state: 

1. The Board of Commissioners for the Sale of School 



*The office of state prison commissioner is to be abolished Dec. 31, 1873, a 
board of three commissioners taking the place of that officer. The office of 
bank comptroller was abolished Dec. 31, 1869. 



Constitution of Wisconsin. 93 

and University Lands, consisting of the secretary of 
state, treasurer and attorney general, whose duties 
are prescribed in article X, section 8, of the constitution. 

2. The Board of Regents of the State University, com- 
posed of the state superintendent of public instruction, 
ex officio, and twelve persons appointed by the governor. 

3. The Board of Regents of Normal Schools, com- 
posed of the governor and state superintendent of pub- 
lic instruction, who are ex officio members, and nine 
members appointed by the governor with the consent 
of the senate. 

4. The Board of Commissioners of Charities and Re- 
form. They have general supervision of the charitable 
and penal institutions of the state, each of which has its 
own board of trustees, and which are as follows: 

(a) The Hospitals for the Insane, located at Madison 
and Oshkosh. 

(b) The Institution for the Blind, at Janesville: 

(c) The Institution for the Deaf and Dumb, at Dela- 
van; 

(d) The Soldiers' Orphans' Home, at Madison; 

(e) The Industrial School for Boys, at Waukesha; 

(/) The State Prison, at Waupun; 

This oard also have power to inspect any jail or poor 
house in the state. 

They consist of five persons appointed by the gover- 
nor, with a secretary elected by the board. 



SECTION I. 

There shall be chosen by the qualified electors of the state, at 
the times and places of choosing the members of the legislature, 
a secretary of state, treasurer and attorney general, who shall 
severally hold their offices for the term of two years. 



94 Constitution of Wisconsin. 

All the state officers, including the governor and 
lieutenant governor, are elected for two years, and the 
election comes in the odd years, while the election for 
members of congress comes in the even years, and the 
election for president in the leap years. No qualifica- 
tions are required by this section for the administrative 
officers. But by a decision of the supreme court in the 
case of a sheriff,* the principle of which would apply 
also to state officers, state and county officers must be 
citizens or foreigners who have declared their intention 
to become citizens. 

SECTION II. 

The secretary of state shall keep a fair record of the official 
acts of the legislature and executive department of the state, 
and shall, when required, lay the same and all matters relative 
thereto before either branch of the legislature. He shall be ex 
officio auditor and shall perform such other duties as shall be as- 
signed him by law. He shall receive as a compensation for his 
services, yearly,, such sum as shall be provided by law, and shall 
keep his office at the seat of government. 

The secretary of state is not required to keep a rec- 
ord of the judicial department, because such a record 
is kept by the clerk of each of the courts. 

* " It is an acknowledged principle which lies at the very fonndation, and 
the enforcement of which needs neither the aid of statutory or constitu- 
tional enactments* or restrictions; that the government is instituted hy the 
citizens for their liberty and protection ; and that it is to be administered 
and its powers and functions exercised by them and through their agency.'' 1 
(Wis Reports, vol. xiv., p. 497.) 

Foreigners who have declared their intention to become citizens of the 
United States are citizens of the state. 

"An alien who has not declared his intention to become a citizen of the 
United States may be elected to the office of clerk of the county board of su- 
pervisors, and in case his disability is removed before the commencement of 
the term of office foi which he Is elected, will be entitled to enter upon and 
hold such office. " 

" It seems that a minor or a person who has not resided one year in the 
state, may be elected to public office in this state, and may enter upon the 
duties of such office in case the disability, as to age or residence, ceases be- 
fore the term of office for which he is elected commences. 11 (Wis. Reports, 
vol. xxx., p. 96.) This principle applies to the eligibility of a'l officers in 
this state. The persons holding these offices must be eligible, not at the 
time of being elected or appointed, but at the time of entering upon the 
offices. 



Constitution of Wisconsin. 95 

As auditor he must examine the accounts of the treas- 
urer and also examine the claims against the stat2. 

SECTION III. 

The powers, duties and compensation of the treasurer and 
attorney general shall be prescribed by law. 

The state treasurer keeps the money and accounts of 
the state; and the attorney general is the lawyer for 
the state. They each have an office in the capitol at 
Madison. 

SECTION IV. 

Sheriffs, coroners, registers of deeds, and district attorneys 
shall be chosen by the electors of the respective counties, once 
in every two years, and as often as vacancies shall happen. 
Sheriffs shall hold no other office, and bo ineligible tor two years 
next succeeding the termination of their offices. They may be 
required by law to renew their security from time to time /and 
in default of giving such new security, their offices shall be 
deemed vacant. But the county shall never be made responsible 
for the acts of the sheriff. The governor may remove any officer 
in this section mentioned, giving to such officer a copy of the 
charges against him, and an opportunity of being heard in his 
defense. 

The officers named in this section hold for a full term 
of two years, and until their successors are elected and 
qualified, no matter when their offices begin* There is 
only one exception to this, and that is when any of these 
officers are appointed to fill a vacancy, in which case 
they hold only until their successors are elected and 
qualified. If they are elected to fill a vacancy, they hold 
for two years from the date of entering upon their office. 

*It was so decided by the supreme court in the case of a sheriff, and bv 
parity of reasoning, the principle would apply to the other officers named in 
this section; hut not to other county officers (Simmons' Disreet. p. 128; Wis. 
Reports. Vol. iii, p. 714.) The supreme court has also decided that In a 
newly organized county where the term of the first officers begin at some 
other time than the first of January, the sheriff may hold for the full term of 
two years: and each of his succes-ors may do the same. (Wis. Reports, 
vol. 'siii, p. 1(58; Simmons' Digest, p. 131.) 



96 Constitution of Wisconsin, 

The office of sheriff is one of great responsibility, and 
the constitution provides very carefully against its abuse. 

1st. Sheriffs can hold no state office. 

2d. They are ineligible to the office of sheriff* for 
the next two years, and, therefore, cannot use their 
office to electioneer for re-election. 

3d. They may be required to renew their security 
from time to time. 

4th. The county cannot be made responsible for their 
acts. 

5th. The governor may remove them at any time, for 
cause. 

The supreme court has decided that this section not 
only provides for the election of sheriffs, but determines 
their powers and duties.f 

In addition to the county officers named in this section, 
the following are otherwise provided for: 
Clerk of the circuit court, (VII, 12). 
County judge, (VII, 14). 
County clerk, (by statute). 
County Treasurer, (by statute). 
County surveyor, (by statute). 
Superintendent of schools, (by statute, under X, I). 

* The supreme court has decided that any person holding the office of sher- 
iff is eligible to another county office, the term of which commences when his 
term as sheriff expires. (Wis. Reports, xiii, 105; Simmons 1 Digest, iii, 747). 

t " Under our state constitution, which piovides for the election of sheriffs 
by the electors of the county, the legislature cannot transfer to other officers,, 
elected by the board of supervisors, important powers and functions which 
from time immemorial have belonged to the office of sheriff'. 11 (Wis. Reports, 
vol. xxii, p. 412). 



Constitution of Wisconsin. 



97 



ARTICLE VII. 



JUDICIARY. 



1. For Impeacetment. 



2. Supreme, 



g. 

C 



3. Circuit. 



Judge$, 



Jurisdi 

Terms of Court. 
Clerk of Court. 



C Who may be impeached, 

I Who impeaches. - 

: Who tries, 

t What punishment. 

Election, - 

Term. .... 

Eligibility. 

Salary and vacancies, - 



Sec. 

- 1 
1 

- 1 
1 



- 10 
9 



Removable- 1 B ? impeachment. 1 
Kemovaoie j By addreg! , . 13 

i Appellate, .... 3 
'f Original, .... 3 

\ Number, 
1 Place. 



Judges. 



Jurisdiction. 



- 11 
- 12 

- 12 

Election, 7 

Eligibility, .... 10 
Salary, 10 

] Vacancies. 9 

' Removable i B >' impeachment. 1 
I KcmmaDle , By address, - 13 

( Appellate, .... 8 
I Original, 8 



Circuit. 

I of Covrt. 
L Clerk of Court, 12 



I Number. 11 

"1 Place, 11 



4. Probate, .... 

5. Municipal, .... 

6. Court Commissioners. 

7. Justices of the Peace. 

8. Tribunals op Conciliation. 



9. General Provisions, 



Style of writs. - 
Tax on suits. 

Testimony in equity court, - 
Suits may be brought in per- 
son or by attorney, - 
Publication of laws, 
. Code of practice, - 



12 
2 
23 
15 
16 

17 
18 
19 

20 
21 
22 



9 s 



Constitution of Wisconsin. 



The following additional matters pertaining to the 
judiciary, given in other parts of this constitution, are 
added below: 



10. Jurisdiction concurrent, on waters that bound the state, 



IX, 1 



11. Laws, 



12. Restriction on 
Civil Cases, 



1. Common law in force, except as specially re- 

pealed, XIV, 13 

2. Treason denned, I, 10 



13. Restriction on 
Crounal Cases, 



1. Justice to plaintiffs, 

2. Jury trial guaranteed, ■ 

3. Suits against the state, 

4. No arrest for debt, 

5. Exemption laws. 



- I, 9 

- h 5 

- IV, 2T 

- I, 16 

- I, 17 



6. Privilege of members of the legislature, - IV, 15 

7. In libel suits the jury are judges of both law 



and fact, 



Before trial, 



On trial, 



After trial, 



I, 3 

1. No arbitrary arrest, - I, 8 

2. Power of search limited, I, 11 

3. Accused must know the 

charge, - - - I, 7 

4. Bail, I, 8 

5. Excessive bail forbidden, I, *> 

6. Habeas corpus, - - I, 8 

7. Privilege of members of the 

legislature, - IV, 15 and 16 

1. Speedy and public trial, - I, 7 

2. By impartial jury, - I, 7 

3. Where the offense was com- 

mitted, - - - - I, 7 

4. No one a witness against 

himself, - I, 8 

5. Can cross-examine opposing 

witnesses, - - - I, 7 

6. Can subpoena his own wit- 

nesses. - - - I, 7 

7. No witness incompetent be- 

cause of his religious be- 
lief, - - - - I, 19 

8. Counsel allowed, I, 7 

f 1. Writs of error, - - - I, 21 
\ 2. Cruel and unusual punish- 

( ment forbidden, - I r 6 



SECTION I. 



1 The court for the trial of impeachments shall he composed 
of the senate. 2 The house of representatives shall have the 
power of impeaching 3 all civil officers of this state, 4 for cor- 
rupt conduct in office, or for crimes and misdemeanors; hut a 
majority of all the members elected shall concur id an impeach- 
ment. 5 On the trial of an impeachment against the governor, 
the lieutenant governor shall not act as a member of the court. 
6 No judicial officer shall exercise his office after he shall have 
been impeached, until his acquittal. Before the trial of an im- 
peachment, the members of the court shall take an oath or af- 
firmation truly and impartially to try the impeachment, accord- 



Constitution of Wisconsin. 99 

in_r to evidence; : and no person shall be convicted without the 
■urrence of two-thirds of the members present 'Judgment 
In cases of impeachment, shall not extend further than to re- 
moval from office, or removal from office and disqualification to 
hold any office of honor, profit or trust, under the state: but the 
party impeached shall be liable to indictment, trial and punish- 
ment according to law. 

1 An impeachment trial is not a common criminal 
trial; it is a political trial. The offenses which can be 
tried are political offenses; the persons who can be tried 
are political officers, and the only punishments which 
can be imposed are political punishments. And, there- 
fore, the court which tries them is the highest political 
body in the state.* But the trial is carried on according 
to the usual forms and methods of higher courts of law, 
for the senate is then sitting as a court and not as a 
legislative body. 

2 The name, house of representatives, evidently 
stands for the assembly, by an unusual piece of care- 
lessness in the framers of the constitution. The lower 
house of the legislature has the power of impeachment, 
because it represents the people more directly than any 
other part of the state government, being elected every 
year. An impeachment by the assembly answers to a 
presentment by a grand jury in criminal cases. It puts 
the person impeached upon his trial; but it does not 
necessarily follow because an officer is impeached that 
he is therefore convicted. 

It is a common mistake to talk of the impeachment of 
an officer as if that were the same as conviction. 

3 The persons who can be impeached are the civil offi- 

* "An impeachment is a proceeding purely of a political nature. It is not 
so much a design to punish an offender as to secure the state against gross of- 
ficial misdemeanors. It touches neither his person or his "property ; but 
simply divests him of his political capacity."' Story, § 793. 



ioo Constitution of Wisconsin. 

cers of the state. Military officers cannot be impeached; 
but they can be tried by court martial and cashiered for 
corrupt conduct in office. Nor can members of the leg- 
islature be impeached. They are not officers of the state 
but representatives of the people.* 

Senators and assemblymen can be expelled for the 
same offenses for which civil officers can be impeached. 

Judges may be impeached, but they may also be re- 
moved by address (VII, 13). 

4 An officer may be impeached for corrupt conduct in 
office or for crimes and misdemeanors which show that 
he is not a fit person to be entrusted with office. Trea- 
son, bribery, gross neglect of duty, direct disobedience 
of the laws, and the like, would be considered corrupt 
conduct in office. 

The crimes and misdemeanors for which an officer 
may be impeached are not exactly defined by the consti- 
tution, and it was not intended they should be. The 
assembly must decide upon each case that comes up 
whether it is worthy of impeachment or not ; and the 
senate whether the person impeached deserves to be re- 
moved from office or not. 

5 The lieutenant governor presides over the senate at 
all impeachment trials, except when the governor is 
impeached. In that case, he has a direct interest in the 
result of the trial, for he would become governor if the 
governor should be removed; and, moreover, he is then 



* The United States senate decided on an impeachment trial in 1799, that 
a senator is not a civii officer of the United States, and cannot be impeached. 
There is no instance in England or America of a legislator being impeached. 
See Story on the constitution, § 793-5. The constitution of Wisconsin favors 
this view by making all acts of the legislature begin, " The people of the state 
of Wisconsin represented in senate and assembly do enact as follows, 1 * 
which implies that senators and assemblymen are not officers of the state 
but representatives of the people. 



TlHon Of W isCun.ii n. IOI 

acting governor and cannot perform both functions at 
once. When the governor is impeached, or if for any 
other cause the lieutenant governor does not preside, 
the senate elects a president fiom its own members. 

"Under the United States constitution impeached 
officers still continue to act in their offices until reim 
by the sentence of the senate, and the same rule holds 
in Wisconsin. An exception, however, is made with re- 
gard to judicial officers, and also with regard to the gov- 
ernor, (V, ?). 

7 The state constitution follows the United States 
stitutioD in requiring a two-thirds majority to con- 
vict. Otherwise a partizan majority might impeach and 
remove a governor or other officers for party purjx - - 

e The persons who -can be tried are officers of the state. 
They can be tried only for political offenses, and their 
punishment is political. It may only be removal from 
office, and it may also be disqualification for office ever 
after. This disqualification can be removed at any time 
by act of the legislature. If the offense is also a crim- 
inal offense as well as a political offense, the officer may 
be tried by the ordinary courts and punished at anytime. 

The state has, therefore, three methods of procedure 
against an unworthy officer: 

1st. He can be impeached and removed from office, 
and also disqualified from holding any office under the 
state. 

2d. If oruiltv of a criminal offense, he can be indicted, 
tried and punished like any other criminal. 

3d. If he has wrongfully taken money or property 
from the state, it can be recovered by a civil process. 



io2 Constitution of Wisconsin. 

SECTION II. 

The judicial power of this state, l both as to matters of law 
and equity, shall be vested in a supreme court, circuit courts, 
courts of probate and in justices of the peace. 2 The legislature 
ma} r also vest such jurisdiction as shall be deemed necessary in 
municipal courts, and shall have power to establish inferior 
courts, in the several counties, with limited civil and crimina] 
jurisdiction. Provided, that the jurisdiction which may be 
vested in municipal courts shall not exceed, in their respective 
municipalities, that of circuit courts in their respective circuits, 
as prescribed in this constitution ; and that the legislature shall 
provide as well for the election of judges of the municipal courts 
as of the judges of inferior courts, by the qualified electors of the 
respective jurisdictions. The term of office of the judges of the 
said municipal and inferior courts shall not be longer than that 
of the judges of the circuit courts. 

1 In England and in some of the states of our Union 
there are two sets of courts to try two classes of cases, 
called law cases and equity cases. The same courts try 
both classes of cases here. (See comments on section 
19.) 

2 The legislature lias established police courts in sev- 
eral cities by their charters, and has also given common 
law jurisdiction to probate courts in several counties, 
by the authority of this section. The judicial power of 
the state is vested in the courts named in this section, 
and in these alone.* 

SECTION III. 

1 The supreme court, except in cases otherwise provided in 
this constitution, shall have appellate jurisdiction only, which 
shall be co-extensive with the state ; but in no case removed to 
the supreme court, shall a trial by jury be allowed. 2 The su- 
preme court shall have a general superintending control over all 
inferior courts; it shall have power to issue writs of 3 habeas 
corpus, 4 mandamus, 5 injunction, 5 quo warranto, 7 certiorari and 
other original and remedial writs, and to hear and determine the 
same. 

* " Under our state constitution the legislature cannot vest in any officer 
or body other than the courts therein provided for, any judicial powers to be 
finally 'and exclusively exercised by such officer or body/ 1 (Wis. Reports, 
vol. xxvii, p. 119). 



Constitution of Wisconsin. 103 

1 The only cases in which the supreme court has orig- 
inal jurisdiction are those of suits against the state, and 
the original writs named below. 

In all other cases suits must first be brought before 
some inferior courts; and an appeal may be taken from 
its decision to the next higher court, and so on until it 
reaches the supreme court where a decision is final. X<» 
jury is allowed in the supreme court; but all questions 
of fact must be decided by jury; therefore, when a suit 
is brought against the state in the supreme court, the 
evidence is heard before a jury empanelled in some cir- 
cuit court, and then the supreme court decides upon the 
law of the case thus made up. But, in case of appeal 
from a circuit court, the same evidence that was taken 
before the circuit court is used over again. 

The facts upon which the case is to be decided remain 
the same as they were proved before the circuit court, but 
the law r of the case is argued over again In- the lawyers 
on each side, and is decided on by the supreme court. 

The decisions of the supreme court in regard to the 
law of any case, are always followed by all lower courts 
in all like cases, and are usually followed afterward by 
the supreme court, though not always. The decisions 
of the supreme court interpret the law, and, therefore, 
in a certain sense, the supreme court may be said to 
sometimes make laws. Where a law may be understood 
to mean several different things, every court must de- 
cide for itself what it reaFy does mean; and as the 
supreme court is the final and highest authority, its de- 
cision decides finally the meaning of the law in dispute, 
unless that decision is afterward reversed by the supreme 
court itself. 



104 Constitution of Wisconsin. 

A similar power is that of deciding laws to be uncon- 
stitutional. All the statute laws of the state are, of 
course, subject to the constitution of the state, and to 
the constitution and statutes and treaties of the United 
States. Upon any case coming before any court in the 
state the plea may be made by the lawyers on either 
side, that a certain law or part of a law bearing on that 
case is unconstitutional, or that it is an encroachment on 
the supreme authority of the United States, as expressed 
in its constitution, statutes or treaties with foreign pow- 
ers. If the plea is sustained by the court, and tne de- 
cision is not reversed by a higher court, that law or part 
of law is ever after regarded in all courts as void and 
good for nothing. A decision in the supreme court is 
the highest authority upon the constitutionality of a law. 

' The supreme court exercises this general control over 
inferior courts, by reason of the right of appeal and of 
writs of error (I, 21), and by reason of the writs named 
in this section.* These writs are all named from tho 
Latin words with which they begin, for these writs were 
formerly in England issued in Latin. Those mentioned 

*"The intent of Article VII, section S, of our constitution, was not so 
much to give the supreme court power to issue a writ of a prescribed form, 
as to enable it to hear and determine controversies of a certain character; 
and this jurisdiction cannot be taken away by any legislative change in the 
form of the remedy; but the court may adopt any new process which is cal- 
culated to attain the same end." (Simmons 1 Digest, p. 689; Wis. Reports, 
vol. xvi, p. 115). 

" In these writs the supreme court has original jurisdiction, that is, a writ 
of habeas corpus or mandamus, or injunction, or quo warranto, can be con- 
stitutionally issued from the supreme court, as well as from a cfrcuit court. " 
(Wis. Keports, vol. i, p. 317, vol. iii, p. 1 and 157; Simmons' Digest, p. 120). 

In ordinary cases, however, the supreme court refuses to grant these writs, 
and refers the petitioners to the circuit court. It is only in exceptional cases 
that the supreme court will grant the writs named above. 

M The supreme court has authority to issue a common law writ of certiorari 
to bring before itself a judgment rendered by a justice of the peace, but it 
will not do so in ordinary cases, where there is an opportunity to apply for 
such writ to the circuit court of the proper county, in time to avoid the 
threatened injury to the party applying.'" (Simmons 1 Digest, p. 770; Chand- 
ler's Reports, vol. i, p. 285). 



Constitution of Wisconsin. 105 

here are the most important writs used by the courts to 
secure justice, and are used as follows: 

3 The writ of habeas corpus (you may have the body) 
commands the person to whom it is issued to produce 
the body of some person who it is charged he holds in 
unjust confinement, before the court, and show cause 
why he should not be liberated. If an officer holds a 
prisoner without a warrant for his arrest, or if he is held 
in prison longer than he should be held, or, if excessive 
bail is required, the prisoner can be liberated by a writ 
of habeas corpus. So also where a private person, not 
parent or guardian, holds a child, he can be released by 
a writ of habeas corpus.* 

4 The writ of mandamus (we command) commands 
officers and others to do certain things which it is their 
duty to do. For instance, if the secretary of state should 
refuse to give a certificate of election to a member of 
the legislature duly elected, and he could not take his 
:ieat because of it, the circuit or supreme court would 
issue a writ of mandamus and compel the certificate to 
be given, j* 

6 A writ of injunction forbids certain things to be 
done, which, if done, would cause injury which could not 
be remedied by the law, or commands certain things to 
be done, the neglect of which would cause an injury 
which could not be remedied.J 

* For decisions about the writ of habeas corpus see note to article 1st, sec- 
tion 8. 

t"Awrit of mandamus is the highest judicial writ known to our constitu- 
tion and laws, and is only issued in cases where there is a specific legal rieht 
to be enforced, or where there is a positive dntv to be performed, which can 
be performed, and where there is no other specific legal remedy." (Simmons 1 
Digest, p. 501; Chandlers 1 Reports, vol. ii, p. 247.) 

" Where the law vests a discretion in any officer or bodv with reference to 
any subject, such discretion will not be controlled by mandamus." (Simmons' 
Digest, p. 501; Wis. Reports, vol. ix, p. 254.) 

$"The granting or refusal of injunctions rests in the sound discretion of the 



io6 Constitution of Wisconsin. 

8 A writ of quo warranto (by what warrant) is one 
which calls upon a person or corporation to show by what 
authority he or it exercises certain powers.* For instance, 
on the first of January, 1856, the governor elect sued 
out a writ of quo warranto in the supreme court, against 
his predecessor, who refused to give up the office, and 
was put into the office by the power of the supreme court. 

7 A writ of certiorari (to be certified of) is very much 
the same thing as a writ of error. When a higher court 
is certified or assured that justice is not being done in 
some case in a lower court, such a writ will be issued, 
and the case removed to the higher court. This writ 
compels the lower court to send up the record of a 
case that has been tried or is being tried in the lower 
court ; and then the higher court tries the case upon 
the facts shown in the record. 

SECTION IV. 

[For the term of five years, and thereafter until the legislature 
shall otherwise provide, the judges of the several circuit courts 
shall be judges of the supreme court, four of whom shall con- 
stitute a quorum, and the concurrence of a majority of the 
judges present shall be necessary to a decision.] The legislature 
shall have power, if they should think it expedient and neces- 
sary, to provide by law for the organization of a separate su- 
preme court with the jurisdiction and powers prescribed in this 

c.rurt. They are never granted when they would be against conscience or 
productive of hardship, oppression, injustice, or public or private mischief. 1 ' 
( Simmons 1 Digest, p. * 7: Wis. Reports, vol. ix, p. 166, vol. xiv, p. 618 and 
p. 443, and vol. xvi, p. 661.) 

" Although the writ of injunction is abolished by chapter 129, revised stat- 
utes, yet the remedy is retained and the power of courts to grant that peculiar 
relief is enlarged, rather than abridged. 11 (Simmons 1 Digest, p. 40.-i; Wis. 
Reports, vol. xiii, p. 348.) 

* -Both the common law writ of quo warranto, and the proceeding bv in- 
formation which was substituted therefor, were abolished by the code (chap- 
ter 160 of the Revised Statutes), and the remedies before to be obtained in 
those forms, are now to be sought and obtained by a civil action, to be com- 
menced and prosecuted in all respects like other civil actions. 11 (Simmons 1 
Digest, p. 689; Wis. Reports, vol. xiv, p. 115). 

The question which of two contestants is entitled to hold a certain office, 
has been frequently tried before the supreme court. 



Constitution of Wisconsin. 107 

constitution, to consist of one chief justice and two associate jus- 
tices, to be elected by the qualified electors of the state, at such time 
and in such manner as the legislature may provide. The sep- 
arate supreme court, when so organized, shall not be changed or 
discontinued by the legislature; the judges thereof shall be so 
classified that but one of them shall go out of office at the same 
time, and their term of office shall be the same as provided for the 
judges of the circuit court. [And whenever the legislature may 
consider it necessary to establish a separate supreme court, they 
shall have the power to reduce the number of circuit judges to 
four, and subdivide the judicial circuits, but no such subdivis- 
ion or reduction shall take effect until after the expiration of 
the term of some one of the said judges, or until a vacancy oc- 
cur by some other means.]* 

The legislature has so reorganized the supreme court. 
It now consists of a chief justice and two associate jus- 
tices, who are each elected for a term of six years, one 
of them every two years. The time of election for 
judges of the supreme and circuit courts is at the town 
elections in the spring, the first Tuesday in April. 

SECTIONS Vf AND YL 

The legislature may alter the limits, or increase the number of 
circuits, making them as compact and convenient as practicable, 

and bounding them by county lines, but no such alteration or 
increase shall have the effect to remove a judge from office. In 
case of an increase of circuits, the judge or judges shall be 
elected as provided in this constitution, and receive a salary not 
less than that herein provided for judges of the circuit court. 

The legislature has frequently altered and increased 
the circuits. The counties composing the circuits and 

*The parts of this section printed in brackets are no longer in force. 

tSection 5 is no longer in force. It is therefore omitted in the test. It 
reads as follows: 

'•The state *hall be divided into five judicial circuits, to be composed as 
follows: The first circuit shall comprise the counties of Racine, Walworth, 
Rock and Green. The second circuit, the counties of Milwaukee, Waukesha, 
Jefferson and Dane. The third circuit, the counties of Washington, Dodge, 
Columbia, Marquette, Sauk and Portage. The fourth circuit, the counties of 
Brown, Manitowoc, Sheboygan, Fond duLac, Winnebago and Calumet. And 
the fifth circuit shall comprise the counties of Iowa, La Fayette, Grant, Craw- 
ford and St. Croix; and the county of Richland shall be attached to Iowa, 
the county of Chippewa to the county of Crawford, and the county of La 
Polnte to'the county of St. Croix, for judicial purposes, until otherwise pro- 
vided by the legislature." 



io8 Constitution of Wiscoyisin. 

the judges of each can be learned from any legislative 
manual. There are now twelve judicial circuits. 

SECTION VII. 

For each circuit there shall be a judge chosen by the qualified 
electors therein, who shall hold his office as is provided in this 
constitution, and until his successor shall be chosen and quali- 
fied ; and after he shall have been elected, he shall reside in the 
circuit for which he was elected.* 

Every circuit judge must live in his own circuit, be- 
cause there are a great many writs and processes that he 
may have to issue when he is not holding court, and it 
would be very inconvenient to go out of the circuit after 
him, to have a writ issued. 

Judges are now always elected for six years, unless it 
is to fill a vacancy, when they are elected for the rest of 
the term of the judge whose place is to be filled. (Sec. 9.) 

SECTION VIII. 

The circuit courts shall have original jurisdiction in all mat- 
ters, civil and criminal, within this state, not excepted in this 
constitution, and not hereafter prohibited by law, and appellate 
jurisdiction from all inferior courts and tribunals, and a super- 
visory control over the same. They shall also have the power 
to issue writs of habeas corpus, mandamus, injunction, quo 
warranto, certiorari,! and all other writs necessary to carry into 
effect their orders, judgments and decrees, and give them a gen- 
eral control over inferior courts and jurisdictions. 

All important cases begin in some circuit court; small 
cases begin before a justice of the peace, or a police 
magistrate, or a county judge and may be appealed to 

*The rest of this section was made obsolete when a separate supreme 
court was organized. It reads as follows : 

" One of said judges shall he designated as chief justice, in such manner 
as the legislature shall provide. And the legislature shall, at its first session, 
provide by law, as well for the election of as for classifying the judges of the 
circuit court, to be elected under this constitution, in such a manner that 
one of said judges shall go out of office in two years, one in three years, one 
in four years, one in five years and one in six years, and thereafter the judge 
elected to nil the office shall hold the same for six years. 1 ' 

t See the definitions of these writs under section 3. 



Constitution of Wisconsin. 109 

the circuit court* or carried up on a writ of error or of 
certiorari, if either party is aggrieved at a decision made 
in the lower court. Each circuit court has jurisdiction 
in its own district and in that only, except in two cases: 

1st. Crimes and misdemeanors committed on lake 
Michigan, lake Superior, lake "Winnebago and the Miss- 
issippi and St. Croix rivers, may be tried in the courts 
of any county that borders on them. (See comments on 
IX, 1.) 

2d. Cases may be changed from one county to another 

or one circuit to another, when it is likely that the trial 

would not be fair in the county or circuit where they 

were begun. This is called a change of venue. (See 

1,7.) 

SECTION IX. 

l When a vacancy shall happen in the office of judge of the 
supreme or circuit courts, such vacancy shall be filled by an ap- 
pointment of the governor, which shall continue until a suc- 
cessor is elected and qualified; and when elected, such successor 
shall hold his office the residue of the unexpired term. • There 
shall be no election for a judge or judges at any general election 
for state or county officers, nor within thirt}' days either before 
or after such election. 

1 A vacancy may occur in a judgeship by the death or 
resignation of the judge, by his accepting any other 
office whatever, by his removing his residence, if a cir- 
cuit judge, outside his circuit; and if a supreme judge, 
out-side the state; or, by his removal from office by im- 
peachment or address. If a judge is impeached by the 
assembly, he is suspended from his office until his trial 
is through. If not convicted he resumes his office. 

2 The state and county elections are held in the fall. 

* "A statute which authorizes appeals to be taken directly from a county 
court to the supreme court in civil cases, is not in violation o"f sec. 8, art. vh, 
of the state constitution/ 1 (Wis. Reports, vol. xxx, p. 434.) 



no Constitution of Wisconsin. 

The election of judges of the supreme court and circuit 
court are held in the spring at the town elections. The 
reason of this is, so that the political and party feeling 
which is rife at the state and county elections, should 
not influence the nomination or election of the judges. 
They ought to be elected for their fitness for the place, 
and not for their party services.* 

SECTION X. 

^ach of the judges of the supreme and circuit courts shall 
receive a salary, payable quarterly, of not less than one thou- 
sand five hundred dollars annually ; 2 they shall receive no fees of 
office, or other compensation than their salaries; 3 they shall 
hold no office of public trust, except a judicial office, during 
the term for which they are respectively elected, and all votes 
for either of them, for any office except a judicial office, given 
by the legislature or the people, shall be void. 4 No person shall 
be eligible to the office of judge, who shall not, at the time of 
his election, be a citizen of the United States, and have attained 
the age of twenty-five years, and be a qualified elector within 
the jurisdiction for which he may be chosen. 

1 The salary of circuit judges is now $3,000 ; that of 
judges of the supreme court, $5,000. 

2 If judges received fees or other compensation it 
might often influence their decisions upon cases before 
them, or at least give rise to the suspicion that the de- 
cisions were so influenced. 

3 A judge should have no interests of any sort except 
to render strict and impartial justice ; his whole time 
must be given to this. Therefore, he is not allowed to 
hold any other oftic3 or even to electioneer for another 
better office while he is a judge. If it were not for 
this provision a judge might run for congress or for the 

* u The provision that prohibits a judicial election at any general election, 
applies only to supreme and circuit judges, and not to probate and county 
judges, or justices of the peace.' 1 (See Simmons 1 Digest, p. 248, and Chand- 
ler's Reports, vol. i, p. 130). Nevertheless, the election for these inferior 
judicial officers are all held at the spring election. 



Constitution of Wisconsin. in 

senate, while he was judge, expecting to resign his 
judgeship if elected. But this is effectually stopped by- 
making all votes for him void. 

4 No other state officer need be more than twenty-one 
years old, but a judge must be twenty-five years 
old. He must have lived at least one year in the 
state to be a qualified elector. He must live in the 
state if a judge of the supreme court, and in his cir- 
cuit if a circuit judge, to be a qualified elector in the 
jurisdiction for which he is chosen. If of foreign birth, 
he must have lived in the United States at least five 
years to be a citizen of the United States. 

SECTION XL 

1 The supreme court shall hold at least one term annually, at 
the seat of government of the state, at such time as shall be pro- 
vided by law, and the legislature may provide for holding other 
terms, and at other places, when they may deem it necessary. 
2 A circuit court shall be held at least twice in each year, in each 
county of this state, organized lor judicial purposes. 3 The 
judges of the circuit court may hold courts for each other, and 
shall do so when required by law. 

1 The sessions of the supreme court are held twice a 
year at Madison in the capitol. 

2 The sessions of the circuit court are always held at 
the county seat of each county. Four sessions are held 
in Milwaukee county and three in several other counties. 
Two sessions are held in all the others, except where the 
county is new and thinly populated. In that case, the 
legislature attaches it to some neighboring county for 
judicial purposes, and all cases are tried at the county 
seat of the latter county. Instances of this are to be 
seen in section 5 of this article. Thus Richland county 
was attached to Iowa county for judicial purposes; that 



H2 Constitution of Wisconsin. 

is, all suits before the circuit court, by people in Rich- 
land county, were to be tried at the term of court held 
in Iowa county. 

s If for any reason a judge cannot hold court at a cer- 
tain time and place, he may get some other judge to 
hold court for him at that time and place. This can be 
done when a judge is sick or has some other private 
reason which stops his doing business. 

SECTION XII. 

There shall be a clerk of the circuit court chosen in each 
county organized for judicial purposes, by the qualified electors 
thereof, who shall hold his office for two years, subject to re- 
moval, as shall be provided by law. In case of a vacancy, the 
judge of the circuit court shall have the power to appoint a clerk, 
until the vacancy shall be filled by an election. The clerk thus 
elected or appointed shall give such security as the legislature 
may require ; and when elected, shall hold his office for a full 
term. The supreme court shall appoint its own clerk, and the 
clerk of the circuit court may be appointed clerk of the supreme 
court. 

Where a county is not organized for judicial purposes, 
it is attached to some neighboring county for judicial 
purposes, and the clerk of the court in that county, is 
clerk of the court for both. The clerk of the court may 
be removed by the circuit judge at any time; but he 
must have a copy of the charges against him, and an 
opportunity to be heard in his own defense. 

When a. clerk of the circuit court dies or resigns, or 
is removed, the judge appoints a clerk in his place, and 
the person so appointed is clerk the rest of the year. 
Should the vacancy happen in the second year of the 
clerk's office, another clerk is elected, of course, at the 
next fall election, whose office begins the first of the 
next January. But should the vacancy happen in the 
first year of his office, a clerk will be elected aVthe elec- 



Constitution of Wisconsin, 113 

tion held that fall, and will hold office for two years. 
The year for electing the clerk of the circuit court, in 
that county, will thus be changed from an even year to an 
odd year, or from an odd year to an even year, as the 
case may be. 

SECTION XIII. 

Any judge of the supreme or circuit court may be removed 
from office by address of both houses of the legislature, if two- 
thirds of al 1 the members elect to each house concur therein, 
but no removal shall be made by virtue of this section, unless 
the judge complained of shall have been served with a copy of 
the charges against him as the ground of address, and shall have 
had an opportunity of being heard in his defense. On the 
question of removal, the ayes and noes shall be entered on the 
journals. 

This is a shorter method of removing a bad judge 
than by impeachment; but it requires a larger majority 
of the legislature to do it. 

A removal by impeachment requires a majority of all 
the members elected to the assembly and two-thirds of 
all present in the senate. While a removal by address 
requires two-thirds of all the members elected to each 
house. But in case of a flagrant oijense, this saves the 
long formalities of a trial. Substantial justice is pro- 
vided for, in giving the accused judge a copy of the 
charges against him and allowing him to be heard in his 
defense, and in requiring the members to vote by ayes and 
noes. The address is niL.de to the governor who there- 
upon removes the judge and appoints some one to fill 
the vacancy thus made. 

SECTION XIV. 

There shall be chosen in each county, by the qualified electors 
thereof, a judge of probate, who shall hold his office for two 
years, and until his successor shall be elected and qualified, and 



H4 Constitution of Wisconsin. 

whose jurisdiction, powers and duties shall be prescribed by 
law. Provided, however, that the legislature shall have power 
to abolish the office of judge of probate in any county, and to 
confer probate powers upon such inferior courts as may be 
established in said county. 

The probate judges are called also county judges. 
Their jurisdiction extends to all cases of wills and in- 
heritance of property, and guardianship of moneys, and 
administration of the estate of deceased persons. The 
legislature has given the county courts jurisdiction in 
civil cases, in several counties, under section 2. 

SECTION XV. 

The electors of the several towns, at their annual town meet- 
ings, and the electors of cities and villages, at their charter elec- 
tions, shall, in such manner as the legislature may direct, elect 
justices of the peace, whose term of office shall be for two years, 
and until their successors in office shall be elected and qualified. 
In case of an election to fill a vacancy occurring before the ex- 
piration of a full term, the justice elected shall hold for the res- 
idue of the unexpired term. Their number and classifications 
shall be regulated by law. And the tenure of two years shall in 
no wise interfere with the classification in the first instance. 
The justices thus elected shalll have such civil and criminal ju- 
risdiction as shall be prescribed by law. 

There are four justices of the peace elected in every 
town, two each year, at the spring election. If there is 
a vacancy for any cause it is filled at the next spring 
election. 

Justices have jurisdiction anywhere in their county 

in civil suits of all cases where the value in controversy 

is less than two hundred dollars, and in criminal cases 

in minor offenses. The sentence of a justice of the 

peace can be appealed from to the next higher couH in 

all cases. 

SECTION XVI. 

The legislature shall pass laws for the regulation of tribunals 
of conciliation, defining their powers and duties. Such tribu- 



Constitution of Wisconsin. 115 

nals may be established in and for any township, and shall have 

power to render judgment, to be obligatory on the parties, when 
they shall voluntarily submit their matter in difference to arbi- 
tration, and agree to abide the judgment, or assent thereto in 
writing. 

The legislature has established no regular tribunals of 
conciliation. But the law allows parties to a civil suit, 
who choose to do so, to submit their difference to arbi- 
trators, chosen by both of them. These arbitrators are 
for that particular case a u tribunal of conciliation." 

This section of the constitution evidently means more 
than this, and the legislature has neglected its duty in 
not establishing these " tribunals of conciliation " in 
every township. If such tribunals were established, 
half the law-suits, with the expenses and hatred in- 
volved in them, would be saved. 

SECTION XVII. 

The style of all writs and process shall be, "The state of Wis- 
consin." All criminal prosecutions shall be carried on in the 
name and by the authority of the same; and all indictments 
shall conclude against the peace and dignity of the state. 

Thus, every constable and justice of the peace rep- 
resents the state of Wisconsin within his own jurisdic- 
tion. And the sovereign authority of the state is ex- 
tended to every official action of the officers of the law 
throughout the state. 

Every writ and process must begin with the words 
" The state of Wisconsin," and every indictment, after 
stating the offense with w T hich the accused is charged, 
must conclude with the words " againt the peace and 
dignity of the state of Wisconsin."* 

* u An indictment in a court of this state which does not conclude " asainst 
the peace and dignity of the state of Wisconsin, 11 is bad, and the words 
"against the peace of tne state of Wisconsin,' 1 are not sufficient/ 1 (Wis, Re- 
ports, vol. xxvii, p. 402,) 



n6 Constitution of Wisconsin. 

SECTION XVIII. 

The legislature shall impose a tax on all civil suits commenced 
or prosecuted in the municipal, inferior, or circuit courts, which 
shall constitute a fund to be applied toward the payment of the 
salary of the judges. 

The justices of the peace and police magistrates are 
paid by the fees they receive. The circuit judges re- 
ceive a salary (sec. 10). A tax of $1.00 is levied on 
every civil suit in a circuit court, which goes toward the 
salary of the judge. He accounts to the state treasurer 
for all fees received, and gets the rest of his salary in a 
draft on the state treasurer. 

SECTION XIX. 

The testimony in causes in equity shall be taken in like man- 
ner as in cases at law ; and the office of master in chancery is 
hereby prohibited. 

The distinction between common law and equity is in 
form abolished by the code of the state, but still there 
are differences in substance well understood by lawyers, 
but too many and too intricate to admit of a definition, 
or description in the limits of this work. The office of 
master in chancery in those states in which there are 
separate courts of equity, answers to the office of court 
commissioner in courts of law. Under the constitution, 
the court commissioners perform most of the duties of 
masters in chancery. The practice of law is greatly sim- 
plified by this, and many of the abuses of the English 
courts of chancery are abolished. 

SECTION XX. 

Any suitor in any court in this state shall have the right to 
prosecute or defend his suit either in his own proper person or 
by an attorney or agent of his choice. 



Constitution of Wisconsin. 117 

This is a similar provision for civil suits to that made 
for criminal cases in article I, section 7. Only in crim- 
inal cases a lawyer will be furnished by the court, if the 
defendant is too poor to pay one; but in civil cases each 
party must pay his lawyer or go without. But every 
man has a rig-hc to be his own lawyer if he chooses. 

SECTION XXI. 

The legislature shall provide by law for the speedy publication 
of all statute laws, and of such judicial decisions made within 
the state, as may be deemed expedient And no general law 
shall be in force until published. 

It would not be right to punish people for disobeying 
laws they have no means of knowing. The general laws 
passed at each session are published in nearly every 
newspaper in the state, and are also published as a book 
for the libraries of lawyers. It is presumed that people 
read the newspapers, and therefore, publication in the 
newspapers of the state is supposed to be notice enough 
to all the people of the state. A general law may, how- 
ever, be made to come into force at some fixed time 
later than its publication.* 

The private and local laws are published in a bound 
volume for the use of courts and lawyers. The decisions 
of the supreme court are regularly published in the offi- 
cial paper of the state, and in a series of volumes. These 
are published because they have the force of law; being 
interpretations of the law which are accepted by all the 
courts of the state. (See comments on sec. 3). 

* u An act of the legislature complete in itself, but which is to take effect 
only on the happening of a certain contingencv,is not invalid for that reason. M 
(Wis. Reports, vol. xxiv, p. 149.) 

••An act of the legislature affecting the people of the whole state is not 
invalid, because by its terms it was to take effect only after it should be ap- 
proved by a majority of the popular vote at a certain election." ^Wis. Re- 
ports, vol. xxvi, p. 291.) 



n8 Constitution of Wisconsin. 

SECTION XXII. 

The legislature, at its first session after the adoption of this 
constitution, shall provide for the appointment of three commis- 
sioners, whose duty it shall be to inquire into, revise and sim- 
plify the rules of practice, pleadings, forms, and proceedings, 
and arrange a system adapted to the courts of record of this state, 
and report the same to the legislature, subject to their modifica- 
tion and adoption ; and such commission shall terminate upon 
the rendering of the report, unless otherwise provided by law. 

Such a commission was appointed, who reported a 
code of practice for the courts of this state, which em- 
bodies all the improvements upon the common law that 
are granted by this constitution, and many more. This 
code was adopted, and all the practice of courts in this 
state is in accordance with it. The design of the code 
is to do away with technicalities in the practice of the 
courts as far as possible, except such as are needed to 
secure the ends of justice. 

SECTION XXIII. 

The legislature may provide for the appointment of one or 
more persons in each organized county, and may vest in such 
persons such judicial powers as shall be prescribed by law. 
Provided, that said power shall not exceed that of a judge of the 
circuit court at chambers. 

These officers are called court commissioners. By or- 
ganized county is meant, a county organized for judicial 
purposes. The judge of each circuit cannot be in every 
county in his circuit at once, and these court commis- 
sioners act as his deputies. They cannot try cases, for 
that is reserved for the judge at the regular term of 
court. But they have all the powers of a court of 
chambers, that is, of a judge when he is not holding a 
regular court. 



\C0r t L>f W% 



II 9 



ARTICLE VIII. 



FINANCE. 



Taxation, 



Appropriation, 



PrBLK DEBT, 



Annual, 



Sec. 



For expenses of ensuing year. 5 
■ deneiency of pr 

Money to be paid only on appropriation, - 2 

:tions on bills crcatin.: debts and taxes. 6 and 3 

For extraordinary expenditure?. 6 

- 
To be paid in live years, - 6 



Wirdtbt. - 



Prohibitions, 



\\ 



No other debt to be contracted, 4 

Credit of the state never to be 
loaned. - 

Xo debt for internal improve- 
ments. 10 

H , - <-ned except for 

-'itutional debt*. - - 9 



TIOX I. 

The rule of taxation shall be uniform, and taxes shall be levied 
upon such property as the legislature shall prescribe. 

To make taxation uniform three things are needed: 
First* that the same things should be taxed and the 
same th tempt from taxation all over the state; 

which is the case. Second^ that the value of property- 
should be assessed alike; and this is done as nearly as 
dble, though it is never done perfectly. Third, that 
the percentage of taxation should be the same; which is 
the case. 

All state taxes are divided equally upon the asse- 
valuation of the whole state. All county taxes upon 
the assessed valuation of each county, and all town, vil- 
lage and city taxes upon the assessed valuation of the 
town, village or citv. 



SECTION II. 

HVi money shall be paid out of the treasury except in pursu- 
ance of an appropriation by law. 



I2C Constitution of Wisconsin. 

That is, the state treasurer has no right to pay out any 
money, except as he is authorized to do so by the legis- 
lature. There are certain regular expenses of the state 
government for which an appropriation has been made 
once for all. These expenses are paid yearly without 
any special appropriation; other appropriations are made 
when needed. 

SECTION III. 

The credit of the state shall never be given or loaned in aid of 
any individual, association or corporation* 

The constitution wisely prohibits the state from lend- 
ing its credit. Some of the states of our union which 
have lent their credit to railroads and other corpora- 
tions have had to pay the debts of these concerns, 
caused by their mismanagement and final bankruptcy. 

SECTION IY. 

The state shall never contract any public debt, except in the 
cases and manner herein provided. 

The provisions of the constitution which follow, re- 
lating to the state debt, are very wise. They have kept 
our state more free from debt than any other state of 
our union. 

SECTION V. 

The legislature shall provide for an annual tax sufficient to 
defray the estimated expenses of the state for each year; and 
whenever the expenses of any year shall exceed the income, the 
legislature shall provide for levying a tax for the ensuing year, 
sufficient, with other sources of income, to pay the deficiency, as 
well as the estimated expenses of such ensuing year. 

•" The supreme court has decided that although the state is forbidden from. 
lending its credit, it can authorize cities, counties, towns and villages to 
lend their credit. ,, (Wis. Reports, vol. vii, p. 688, vol. x, p. 136 and 195. Sim- 
-lons' Digest, p. 134.) 



Constitution of Wisconsin. 121 

The ordinary expenses of each year must be paid by 
the year's taxes. They cannot be made a debt upon 
the state. But if for any cause, there should be a de- 
ficit in any year, it must be paid by the taxes of the next 
year. The deficit must not go on increasing from year 
to year. 

SECTION VI. 

For the purpose of defraying extraordinary expenses, the state 
may contract public debts; but such debts shall never in the 
aggregate exceed one liuiul red thousand dollars. Every such 
debt shall be authorized by law, for some purpose or purposes to 
be distinctly specified therein; and the vote of a majority of all 
the members elected to each house, to be taken by yeas and nays, 
shall be necessary to the passage of such law; and every such 
law shall provide for levying an annual tax sufficient to pay the 
annual interest of such debt, and the principal within live years 
from the passage of such law, and shall specially appropriate 
the proceeds of such taxes to the payment of such principal and 
interest; and such appropriation shall not be repealed, nor the 
taxes be postponed or diminished, until the principal and inter- 
est of such debt shall have been wholly paid. 

The power of the legislature to run the state in debt 
is very carefully guarded: 

First. No other branch of the government can run 
the state in debt. 

Second. The debt can only be for extraordinary ex- 
penses, not for the regular annual expenses of carrying 
on the government. 

Third. These debts altogether shall never exceed 
$100,000 at any one time. 

Fourth. If the legislature authorizes such a debt, it 
must be by law, and the purpose for which the money 
is to be borrowed must be distinctly stated in the law. 

Fifth. When the law is voted in either house, three- 
fifths of the members must be present to make a quorum 
(sec. 8), and a majority of all the members elected must 



122 Constitution of Wisconsin. 

vote for it; that is, as the number now stands, in the 
assembly, at least, fifty- one members must vote for the 
bill; and in the senate at least seventeen. 

Sixth. The vote must be taken by yeas and nays, and, 
of course, the vote of each member recorded on the 
journal so that any one may know how he voted. 

Seventh. Every law that makes a debt must provide 
for paying it, interest and principal in five years. 

Eighth. The payment of the debt cannot be put off, 
but the taxes must be raised every year that shall pay it 
in five years at the farthest. 

These provisions of the constitution have kept the 
state from having a heavy debt. There are few states 
of our union whose credit is so good, and whose debt is 
so small as Wisconsin. 

SECTION VII. 

J The legislature may also borrow money to repel invasion, 
suppress insurrection, or defend the state in time of war; 2 but 
the money thus raised shall be applied exclusively to the object 
for which the loan was authorized, or to the repayment of the 
debt thereby created. 

1 War is a very costly luxury, and the expenses of a 
war cannot be paid in the same year, as the ordinary 
expenses of the state government can. The expenses 
of a war must be paid mostly from borrowed money. 
Therefore, the constitution allows the legislature to con- 
tract a debt for war expenses. But the war must be a 
defensive war. The state cannot carry on an offensive 
war ; that is a power which the United States reserves 
to itself. But the state may be obliged to defend itself 
against insurrection by rebels at home or invasion by a 
foreign foe, or may have to prevent invasion by de- 



Constitution of Wisconsin. 123 

fending itself beyond its own frontier. In that case the 
state can carry on war. 

2 The legislature may borrow money to pay the ex- 
penses of a defensive war, and thus create a war debt. 
It may also borrow money, if need be, to pay the debt * 
when it is due, and thus keep up a debt which is really 
the same debt with the time of payment extended. 

SECTION VIII. 

On the passage in either house of the legislature, of any law 
which Imposes, continue-, or renews ■ tax, or creates a debt or 
charge, or makes, continues, or renews an appropriation of pub- 
lie or trust money, or releases, discharges, or commutes a claim 
or demand of the state, the question shall be taken by yeas and 
nays, which shall be duly entered on the journal; "and three- 
fifths of all the member- elected to such house, shall in all such 
cases be required to constitute a quorum therein. 

Every vote upon a question in which money is con- 
cerned must be a matter of public record, so that any 
one can tell at any time how any member of the legis- 
lature voted upon any such question. Members feel 
their responsibility more when their votes are taken by 
yeas and nays and entered upon the journal. 

SECTION IX. 

No scrip, certificate, or other evidence of state debt whatsoever, 
shall be issued, except for such debts as are authorized by the 
sixth and seventh sections of this article. 

The state officers have no right to issue certificates of 
debt, or anything that shall bind the state in any way, 
except they are authorized to do so by a vote of the leg- 
islature, and the legislature itself has no right to author- 
ize any debt except such as are authorized by sections 
G and 7. 



124 Constitution of Wisconsin. 

SECTION X. 

1 The state shall never contract any debt for works of internal 
improvement, or be a party in carrying on such works; 2 but 
whenever grants of land or other property shall have been made 
to the state, especially dedicated by the grant to particular works 
of internal improvement, the state may carry on such particular 
works, and shall devote thereto the avails of such grants, and 
may pledge or appropriate the revenues derived from such works 
in aid of their completion. 

1 Works of internal improvement are such as railroads, 
canals, roads, bridges, the drainage of swamps, and the 
like. If the state should undertake such works as these 
it would be sure to run into deM; and it would be very 
possible that the money would not be wisely expended. 
Experience has shown that private persons and compa- 
nies can do such work better than governments can. 

2 An exception is made, where grants have been made 
by the United States or otherwise, to the state to carry 
on improvements. In that case the state is only a trus- 
tee to carry out the wishes of the government or persons 
who gave the property. The state has done this with 
the swamp lands given it by the United States. Half 
the proceeds of these are used to drain the other swamp 
lands. 



Constitution of Wisconsin. 125 

ARTICLE IX. 

EMINENT DOMAIN AND PliOPEKTY OF THE STATE. 

(For analysis see article II.) 

SECTION I. 

^he state shall have concurrent jurisdiction on all lakes and 
rivers bordering on this state, so far as such rivers or lakes shall 
form a common boundary to the state, and any other state or 
territory now or hereafter to be formed and bounded by the 
same. * 2 And the river Mississippi and the navigable waters"lead- 
ing into the Mississippi and St. Lawrence, and the carrying 
places between the same, shall be common highways, and' for- 
ever free, as well to the inhabitants of the state as to the citizens 
of the United States, without any tax, impostor duty therefor. 

! The state has sole jurisdiction within its own boun- 
daries on land ; no other state has any jurisdiction 
there. But where a river or lake makes a part of the 
boundary of the state it is not easy to tell where the 
exact boundary is. It saves some trouble and settles 
some vexatious questions to give all the states that bor- 
der on lake Michigan, for instance, each the same juris- 
diction anywhere on the lake. There is nothing to tax 
on the lake except the ships and boats, and these are 
taxed where they are owned, so that the only things that 
are affected by the question of jurisdiction, on the 
lakes and rivers, are the crimes and misdemeanors com- 
mitted on these rivers and lakes. These may be tried 
in the courts of any state that border on the lake. For 
instance, suppose a murder is committed on a steamboat 
that is going from Milwaukee to Grand Haven, in Michi- 
gan when the boat is only a few miles out from Milwaukee. 
It would be very inconvenient if, because the murder 
was committed in the waters belonging to Wisconsin, 
the Wisconsin courts alone had jurisdiction over that 



126 Constitution of Wisconsin. 

murder. If that were so the boat would either have to 
turn back to Milwaukee again, and that would cause 
the passengers a great deal of inconvenience, or else the 
murderer would get off without any punishment, because 
the Michigan courts would have no jurisdiction. Or, 
suppose a crime was committed near the middle of the 
lake, it would be a delicate question which state had ju- 
risdiction of the offense, because it would be hard to 
tell just where the boundary line was. But as it now 
is all the states that border on lake Michigan have con- 
current jurisdiction. That is, an offense committed on 
lake Michigan may be tried before the courts of Wis- 
consin, of Illinois, of Indiana or of Michigan, whichever 
is most convenient. So, also, with lake Superior. So, 
also, with offenses on the Mississippi river, when that river 
forms the boundary between this state and Minnesota; 
offenses committed on it may be tried in the courts of 
either state. And so, also, where it is the boundary be- 
tween this state and Iowa. This concurrent jurisdic- 
tion on lakes Michigan and Superior, and all rivers that 
bound the state, is ffiven by the acts of congress which 
admitted this state and the neighboring states into the 
union. This concurrent jurisdiction does not depend 
upon this section of the constitution, but would exist 
whether it was mentioned in the constitution or not. 

The state has given the counties bordering on lakes 
Michigan and Superior and the Mississippi river, con- 
current jurisdiction for offenses committed on these 
waters; and also to all the counties bordering on lake 
Winnebago for all offenses committed on that lake. 

2 The state of Wisconsin guarantees by this clause of 
the constitution, that all the waters over which it has 



Constitution of Wisconsin, 127 

control shall be free highways. No tolls or duties are 
charged for any ship or goods owned by citizens of the 
United States. In practice it is scarcely worth while 
for the state of Wisconsin to levy tolls or duties on the 
few foreign ships that come into our ports; so that really 
the navigable waters of the state are free for the ships 
and commerce of all nations, so far as the state is con- 
cerned. The United States, however, charge certain 
tonnage duties on foreign vessels and a tariff on foreign 
goods brought here, but these duties are the same for 
all parts of the country, and when foreign vessels or 
foreign goods have once paid these duties, they are free 
to go anywhere in the United States. The navigable 
waters of Wisconsin are thus free highways for the com- 
merce of all the world, subject only to the duties on 
foreign commerce which congress imposes. 

SECTION II. 

The title of all lands and other property, which have accrued 
to the the territory of Wisconsin, by grant, aift, purchase, for- 
f( iture, escheat, or otherwise, shall vest in the state of Wisconsin. 

This section belongs logically under article XIV, 
which regulates the change of Wisconsin from a territory 
to a state, and substantially the same thing is given over 
again in one of the clauses of XIV, 4. The state of 
Wisconsin is the same political body as the territory of 
Wisconsin, only with a more perfect government, and 
with larger powers. It, therefore, holds all the property 
held by the territory. 

This title to property may come by a grant from the 
United States, or some other state, by gift from cities, 
towns, villages or private persons, as when land is given 



128 Constitution of Wisconsin. 

for public buildings, by purchase, by forfeiture, as when 
a man buys land of the state and fails to pay for it, in 
which case it is forfeited to the state, or by escheat, in 
case any one dies without heirs and his property goes to 
the state. 

SECTION III. 

1 The people of the state, in their right of sovereignty, are de- 
clared to possess the ultimate property in and to all lands within 
the jurisdiction of the state; 2 and all lands, the title to which 
shall fail from a defect of heirs, shall revert or escheat to the 
people. 

1 The right of eminent domain is claimed by all civil- 
ized governments. The state has the ultimate title to 
all land within its boundaries, and can take any land 
from its owner if it is needed for public purposes, only 
it must pay a fair price for it. (I, 13.) This right be- 
longed to the United States, but when congress admitted 
this state to the union it gave this right of ultimate sov- 
ereignty to the state. 

This right of eminent domain is exercised whenever 
the land needed for any public buildings cannot be pur- 
chased, whenever a road or street or a public park is 
laid out, and whenever a railroad or canal is constructed. 
In the latter case, the railroad or canal is a public high- 
way; owned and constructed by a private corporation, it 
is true, but operated for the public benefit, and liable to 
be controlled by law or to be taken from its owners, 
should they abuse their trust. Private property can be 
taken for railroads and canals only because they are 
public highways.* 

*" In case of a railroad owned by a private corporation in whose favor tne 
eminent domain may be exercised, the pubic use consists in the right of the 
public to the carriage of persons and property upon tender of a proper con- 
sideration, and in the power of the state to control the franchise and limit, 
the tolls." (Wis. Reports, vol. xxv, p. 107.) 



Constitution of Wisconsin. 129 

Th's right of eminent domain is the right of a sover- 
eign — in this country the sovereign people — and it is meant 
to be used only for the public good. Highways for com- 
merce are an absolute necessity of any civilized society. 
But for land transportation artificial highways must be 
made. These have now come to be railways, wherever 
railways can be built. These railways could not be built 
if they had to buy the right of way of each land owner 
at his own price. The state, therefore, very justly uses 
the right of eminent domain to take the land needed for 
railways at a fair price. This is done for the public good. 
But as the practical monopoly of the carrying trade en- 
joyed by the railways is very liable to be misused for the 
injur}' of the public, the state has rightly reserved the right 
to control these chartered monopolies (XI, 1), whenever it 
is necessary to do so for the public good. They are al- 
lowed to exercise the sovereign ricrht of eminent domain 
only for the public good. But they dp not have this 
privilege given to them without any duties in return. 
They are to use the great powers given to them for the 
public good. Should they fail to do so, the state can 
limit their powers or destroy them altogether. They are 
the servants of the people, the creatures of the state, 
not its masters and rulers. 

2 In accordance with the same right when any one dies 
and leaves no heirs his property goes to the state. Land 
only is spoken of in this section, but the same principle 
applies to all property. 

Any property that thus escheats to the people goes 
into the school fund. (X, 2.) 



130 



Constitution of Wisconsin. 



ARTICLE X. 



EDUCATION. 



1. Officers, 



2. School Fund, - 



3. School Tax, 



State Superintendent, 

Such other officers as the legislature directs, 

1. Lands granted by the United 
States, - 

2. Property forfeited or es- 
cheated, - 

3. Military exemptions, 

4. Net proceeds of penal fines, 
Sources, -j 5. All unspecified grants to the 

state, - 

6. Five hundred thousand 
acres of land, - 

7. Five per cent of the net pro- 
ceeds of United States 
land sales, - 

1. Among the towns and cities 
of the state, 

2. In proportion to the school 
population, - - - - 

That school 
tax wa s 
raised, - 
That school 
was main- 
tained 
three 
[ months, 



Sec. 



Apportioned, 



3. Conditions. 



Ii 



Annual, - - 

In each town and city, 

Not less than half the school fund received, 



4 Schools 



District schools 



1. Uniform, 

2. Free to persons of school 
age, - 

3. Unsectarian, 

t Academies and normal schools, - - - 

f 1. Supported by special grants from the United 

States, 

5. University, -i 2. At or near the capital, - 

3. Colleges may be connected with it, 
[ 4. Unsectarian", 

f f Secretary of State, 

Treasurer, - 
Attorney General,. - 

For cash - 

On time with mortgages. 

3. Shall withhold land from sale in their discretion 

4. Shall invest the proceeds* as the legislature 
directs, 

5. Shall give security, 



6. School Land 
Commissioners, 



1. Shall consist of 



2. Shall sell, 



Constitution of Wisconsin. 131 

SECTION I. 

1 The supervision of public instruction shall be vested in a 
state superintendent, and such other officers as the legislature 
shall direct. 2 The state superintendent shall be chosen by the 
qualified electors of the state, in such manner as the legislature 
shall provide; his powers, duties and compensation shall be pre- 
scribed by law. Provided, that his compensation shall not ex- 
ceed the sum of twelve hundred dollars annually. 

1 The state officers who have the supervision of public 
instruction are an assistant superintendent of public in- 
struction and county and city superintendents. The as 
sistant superintendent is appointed by the state super- 
intendent and performs such duties as he directs. 
County superintendents are elected for the term of two 
years, like other county officers. They examine and 
license teachers, and have the general supervision of the 
schools and teachers in their respective jurisdictions. 
Several of the larger counties in the state are divided 
each into two superintendent districts. The cities have 
their own systems of school supervision ; generally, 
under city superintendents, who may or may not be the 
principals of the high schools. The local supervision of 
schools is in the hands of the district boards, or where 
the town system of schools has been adopted, in the 
hands of the town board of education. 

2 The state superintendent is chosen for a term of two 
years, at the same time as the other state officers. 

SECTION II. 

1 The proceeds of all lands that have been or hereafter may be 
granted by the United States to this state, for educational pur. 
poses, (except the lands heretofore granted for the purposes of a 
university), and all moneys, and the clear proceeds of all pro- 
perty, that may accrue to the state by forfeiture or escheat, and 
all moneys which may be paid as an equivalent for exemption 



132 Constitution of Wisconsin. 

from military duty, and the clear proceeds of all fines collected 
in the several counties for any breach of the penal laws, and all 
moneys arising from any grant to the state, where the purposes 
of such grant are not specified, and the five hundred thousand 
acres of land to which the state is entitled by the provisions of 
an act of congress, entitled " an act to appropriate the proceeds 
of the sale of public lands, and to grant pre-emption rights," ap- 
proved the fourth day of September, one thousand eight hundred 
and forty-one, and also the five per centum of the net proceeds of 
the public lands to which the state shall become entitled on her 
admission into the union, (if congress will consent to such ap- 
propriation of the two grants last mentioned,) shall be set apart 
as a separate fund, to be called the school fund, the interest of 
which, and all other revenues derived from the school lands, 
shall be exclusively applied to the following objects, to-wit: 

2 1. To the support and maintenance of common schools in each 
school district, and the purchase of suitable libraries and appa- 
ratus therefor. 

3 2. The residue shall be appropriated to the support and main- 
tenance of academies and normal schools, and suitable libraries 
and apparatus therefor. 

1 A very liberal provision is thus made for a school 
fund. The following are the sources of that fund: 

1. Property which is forfeited or escheated to the 
state. Property escheats to the state when the owner 
dies without a will and without heirs. 

2. Money paid for exemption from military duty. 

3. The net proceeds of all penal fines. 

4. All unspecified grants to the state. 

5. Section sixteen in each township. 

6. The five hundred thousand acres of land first given 
for the Rock river canal, and afterward by consent of 
congress given to the school fund. 

?. The five per cent, of the net proceeds of the sale of 
all public lands first given to the state to build roxcs 
and canals. 

8. One half the proceeds of the swamp lands given to 
the state by congress in 1850 and 1855 This is now set 
apart as a normal school fund. 



Constitution of Wisconsin. 133 

The interest of this fund (except the normal school 
fund), is apportioned each year among the school districts 

of the state. This fund now amounts to about two and 
a half million dollars, and it is constantly increasing, 
though not so fast as the population of the state increases. 

2 The interest of the school fund is apportioned to 
the districts which have maintained school five or more 
months during the preceding year. This money must 
be set apart for teachers' wages. The legislature has 
power under this section of the constitution to furnish 
libraries and apparatus to the schools out of the school 
fund; but it has not chosen to do so. 

3 Until the year 1859 aid was given by the state to 
those colleges, academies and high schools which had 
normal classes of persons intending to teach. Since 
that time the normal work of the state has been placed 
in the hands of the Board of Regents of Normal 
Schools. The income arising from half the proceeds of 
the swamp lands granted to the state by congress in 
1850 and in 1855, is placed at their disposal for the fol- 
lowing objects: 

1. Building and endowing normal schools. Of these 
three are now in operation — at Platteville, Whitewater 
and Oshkosh; and another has been decided upon and 
will soon be built and in operation at River Falls. 

2. Conducting teachers' institutes in the various coun- 
ties of the state. 

3. Conducting normal institutes or movable normal 
schools in those counties which are too distant from the 
normal schools to be benefited by them. The money 
for this last purpose does not come from the school 
fund, but from the state treasury. 



134 Constitution of Wisconsin. 

SECTION III. 

1 The legislature shall provide by law for the establishment of 
district schools, which shall be as nearly uniform as practicable, 
and such schools shall be 2 free and without charge for tuition to 
all children between the ages of four and twenty years, and 3 no 
sectarian instruction shall be allowed therein. 

*The experience of all modern nations shows that the 
people must be educated to make the nation strong or 
fit for freedom. The strength of the German empire is 
in her schools and universities. The weakness of some 
other nations of Europe is in the ignorance of the la- 
boring classes. We thus need popular education to make 
and keep our nation strong, for " knowledge is power." 

But we also need popular education to make and keep 
us fit for freedom. Experience has shown that no na- 
tion can long be free unless it is intelligent. It is never 
the interest of the majority of the people, anywhere, to 
be oppressed by unjust laws or aristocratic privileges 
or corrupt governments. Where a whole people is in 
telligent, even if ruled by no higher motive than self- 
interest, they will maintain their freedom against mili- 
tary usurpers, corrupt demagogues and wealthy classes 
and corporations. Those who govern any nation should 
be intelligent, and in this country where the people are 
the rulers, the people should be intelligent.* 

Another reason for popular education is that the inher- 
ent rights of each individual to liberty and the pursuit 
of happiness, (I, 1) guaranteed by this constitution, may 
be secured to each one. Every citizen of this state 
should have a fair chance in life secured to him. And 



* "The common school, oh, let its light 
Shine through our country's story; 
Here lies her health, her wealth, her might; 
Here rests her future glory. 1 ' 



Constitution of Wisconsin. 135 

this can only be given by an education which shall fit 
him to perform intelligently the ordinary duties of life, 
and that shall give him the clue to all the knowledge 
possessed by the world. Then if all outside hindrances 
are removed from his pathway, as they are in this coun- 
try, each person with this capital of a common school 
education to start with, can make his own place in life, 
and be " the architect of his own fortune." 

2 The common schools in this country are free to all 
persons of school age, as they are not in any other coun- 
try in the world. Here the tax payers educate the chil- 
dren of rich and poor alike, believing that " it is cheaper 
to pay for school houses than to pay for jails and poor- 
houses." 

3 Xo sectarian instruction is allowed in our schools, 
for two reasons : first, because we have several different 
forms of faith in this state, no one of which has a right 
to have the powerful influence of the schools used in its 
favor; and second, because the experience of our coun- 
try has shown that religion thrives best when it is inde- 
pendent of the state, asking no favors from it, and not 
being controlled by it.* 

SECTION IV. 

Each town and city shall be required to raise, by tax, annually, 
for the support of common schools therein, a sum not less than 
one-half the amount received by such town or city respectively 
for school purposes, from the income of the school* fund. 

This tax is assessed by each county on the towns and 
cities of which it is composed. Towns and cities may 

* "Nor heeds the sceptic's puny hands, 

While near her school the church spire stands: 

Nor fears the blinded bigot's rule. 

While near her churcn spire stands her school.''— Whittier. 



136 Constitution of Wisconsin. 

also raise school taxes.* But the greater share of the 
school tax is raised by the school districts, each for its 
own school. 

SECTION V. 

Provision shall be made by law for the distribution of the in- 
come of the school fund among the several towns and cities of 
the state, for the support of common schools therein, in some 
just proportion to the number of children and youth resident 
therein, between the ages of four and twenty years, and no appro- 
priation shall be made from the school fund to any city or town 
for the year in which said city or town shall fail to raise such 
tax, nor to any school district for the year in which a school 
shall not be maintained at least three months. 

The income of the school fund is distributed among 
the towns and cities of the state in proportion to the 
number of persons between four and twenty years old, 
in those districts which have maintained school for Jive 
months during the preceding year. 

SECTION VI. 

1 Provision shall be made by law for the establishment of a 
state university, at or near the seat of state government, and for 
connecting with the same from time to time such colleges in 
different parts of the state as the interests of education may re- 
quire. 2 The proceeds of aL lands that have been or may here- 
after be granted by the United States to the state for the support 
of a universty, shall be and remain a perpetual fund to be called 
the " university fund," the interest of which shall be appropri- 
- ated to the support of the state university, and 3 no sectarian in- 
struction shall be allowed in such university. 

1 The state university has been established at Madison. 
No colleges in other parts of the state have yet been 
connected with it. The university is governed by a 
board of regents, consisting of the state superintendent 
and twelve persons appointed by the governor. It is 

* " Under the constitution of the state school districts may be organized, 
and public moneys raised and apportioned in villages as well as in towns and 
oities." 1 (Wis. Keports, vol. xxv, p. 46b). 



Constitution of Wisconsin. 137 

open to both sexes, in all its departments. It consists 
of a " college of letters," a " college of arts," a " female 
college," an "agricultural college," a u law department," 
and a u preparatory department." 

2 In addition to the land grant given by congress for 
the university, congress in 18G2 gave a land grant to 
each state in the union for agricultural colleges. In 
this state this grant was given to the state university, 
for an agricultural college connected with it. 

3 No sectarian instruction is allowed in the state uni- 
versity for the same reason that none is allowed in the 
common schools. 

SECTIONS VII AND VIII. 

(7). The secretary of state, treasurer, and attorney general shall 
constitute a board of commissioners for the sale of the school 
and university lauds, and for the investment of the funds arising 
therefrom. Any two of said commissioners shall he a quorum 
for the transaction of all business pertaining to the duties of 
their office. 

(8.) Provision shall be made by law for the sale of all school 
and university lands, after they shall have been appraised, and 
when any portion of such land's shall be sold, and the purchase 
money shall not be paid at the time of the sale, the commission- 
ers shall take security by mortgage upon the land sold for the 
sum remaining unpaid, with "seven per cent, interest thereon, 
payable annually at the office of the treasurer. The commission- 
ers shall be authorized to execute a good and sufficient convey- 
ance to all purchasers of such lands, and to discharge any mort- 
gage taken as security, when the sum due thereon shall have 
been paid. The commissioners shall have power to withhold 
from sale any portion of such lands when they shall deem it 
expedient, and shall invest all moneys arising from the sale of 
such lands, as well as all other university and school funds, in 
such manner as the legislature shall provide, and shall give such 
security for the faithful performance of their duties as may be 
required bylaw. 

The school fund is thus cared for by a board of three 
state officers, under the direction of the legislature. 



'33 



Constitution of Wisconsin. 



ARTICLE XI. 



1. Corporations, 



2. Municipal Cor- 
porations, 



3. Banks, 



CORPORATIONS. 



Shall be under general laws, 



Sec. 



( When general laws will not do, 

A- 



Except •< And ther subject to the revision of the [ 
( legislature, J 

Restriction on taking private property, 
Legislature shall organize them, ... 
Restriction on debts and taxes, - 



f Legislature has no power to charter till authorized 

I by the people, 4, 5 

1 Every charter or general law must be submitted to 

[ the people, 5 



This article has been essentially modified by the amend- 
ment forbidding special legislation, adopted November 
7, 1871. That amendment, which forms section 31 and 
32 of article IV, prohibits the legislature from granting 
corporate powers or privileges by special laws, except 
to cities, and also prohibits the legislature from incor- 
porating any town or village or amending the charter 
thereof, by a special law. As it now stands in the con- 
stitution the subject of corporations maybe analyzed as 
follows: 



Corporations, 



Municipal, - 



Private, 



Cities organized by special 
charter, - - - - IV, 31 

Towns and villages by general 
law, IV, 32 

Laws and charters may be re- 
vised by the legislature, - XI, 1 

Restriction on taking private 
property, ... - XI, 2 

Restriction on debts and taxes, XI, 3 

Legislature no pow- 
er to act until au- 
thorized by the 
people, 
No special charter, 
Every law must be 
submitted to the 
people, - 
Other corporations under gen- 
eral laws, - 



Banks 



XI, 4 
IV, 31 



XI, 5 
IV. 32 



Constitution of Wisconsin. *39 

SECTION I. 

1 Corporations without banking powers or privileges may be 
formed under general laws, but shall not be created by special 
act, except for municipal purposes, [and in cases where, in the 
judgment of the legislature, the objects of the corporation can- 
not ^be attained under general laws.]* 2 A11 general laws or 
special acts enacted under the provisions of this section may be 
altered or repealed by the legislature at any time after their 
passage. 

1 By the amendment adopted Nov, 1, 1871, corporate 
powers cannot now be granted by a special law except 
to cities. All laws made in regard to corporations, ex- 
cept city charters, must now be general. For instance, 
all laws chartering insurance companies must apply to 
all insurance companies. The legislature cannot give 
one insurance company powers which it refuses to other 
companies which are doing the same sort of business. 
So in regard to villages. Every law made about vil- 
lages must apply to all the villages in the state alike. 
The legislature cannot give one village powers which 
it refuses to others. Xo special charter can now be 
given to any corporations, either private or municipal, 
except to cities. 

2 Where the legislature of any state has once given 
corporate powers without reserve, they cannot be re- 
voked without the consent of the body which receives 
them. J For instance, if the legislature of this state had 

* Repealed by the amendment to article IV. 

tin the celebrated case of Dartmouth College against Woodward, in 
which Daniel Webster was attorney for ihe plaintiff, if was decided by the 
Supreme Court of the United Stales that charters are in the nature of a con- 
tract, between the government and the corporation, and consequently can- 
not be altered or repealed by the government without the consent of the 
corporation, under the U. S. constitution, article I. section 10. which forbids 
stares to pass laws impairing the obligations of contracts. (Wheaton's re- 
ports of the U. S. supreme court, vol. vi. p. 518). 

But when the constitution of a state reserves the right of repeal, as in 
this section, all such contracts are made and accepted by the corporations 
with the right of repeal or amendment by the legislature as one of the im- 



1 40 Constitution of Wisconsin. 

given some railroad extraordinary and even dangerous 
privileges, were it not for this section the legislature 
could not repeal or alter the charter that gave those ex- 
traordinary privileges except with the consent of the 
railroad. But by this section the legislature can always 
control all the corporations in the state. And if ,we 
consider how powerful the great railroad, and telegraph, 
and express companies and other corporations have 
grown to be, we shall see how wise is this provision in 
the constitution. The legislature can now at any time 
limit the power of these corporations, or even repeal 
their charters altogether.* 

SECTION II. 

No municipal corporation shall take private property for 
public use against the consent of the owner, without the neces- 
sity thereof being first established by the verdict of a jury. 

If the proper officers of a city, town or village cannot 
agree with the owner of property which they take for 
public use, as, for instance, when a street is opened, the 
owner can call for a jury, who shall decide what the 
property is worth. 

pHed conditions of the contract itself, which therefore can be amended or 
repealed by the legislature at its pleasure. (Wis. Reports, vol. iii, pp. 287 and 
611). 

"The grant of special franchises made to a corporation by its charter is in 
the nature of a contract, the obligation of which cannot, under the prohibi- 
tion of the U. S. constitution, be impaired by subsequent legislation. A 
state, however, may either by its constitution, as in this state, or by law, re- 
serve the power to repeal or modify any or all such acts of corporation. 
(Simmons' 5 Digest, p. 120.) 

* t; In the case of a railroad owned by a private corporation, in whose fa- 
vor the rights of eminent domain may be exercised, the public use consists 
in the right of the public to the carriage of persons and property upon ten- 
der* of a proper consideration, and in the power of the state to control the 
franchise and limit the tolls. 

" Such a qualified and limited public use will not support taxation for the 
purpose of raising moneys to be donated to such a corporation," But 
counties, cities and villages may become stockholders in a railroad. (Wis. 
Reports, vol. xxv., p. 16«.) 

M The power of the legislature to authorize municipal subscriptions to the 
stock of railroads is settled Dy former decisions in this state as v, ell as in 
other states, though the majority of this court would be disposed to deny 
the power if it were a new question. 1 ' 1 (Wis. Reports, vol. xxx., p, 340.) 



Constitution of Wisconsin. 141 

SECTION III. 

It shall be the duty of the legislature, and they are hereby 
empowered to provide for the organization of cities and incor- 
porated villages, and to restrict their powers of taxation, ase 
inent, borrowing money, contracting debts, and loaning their 
credit, so as to prevent abuses in assessments and taxation, and 
in contracting debts by such municipal corporations. 

Cities are incorporated by special charters given to 
each city by the legislature. Villages were, until 1871, 
incorporated either by special charter or under a gen- 
eral law. But all villages hereafter incorporated must 
be incorporated under a general law. The financial 
powers of cities and villages are limited in a great many 
ways, tc prevent abuses in assessments and taxation, too 
numerous and complicated to be given here. This sec- 
tion of the constitution, however, requires the legisla- 
ture to limit them in some way.* 

SECTTONS IV AND V. 

(4.) The legislature shall not have power to create, authorize, 
or incorporate, by any general or special law, any bank or bank- 
ing power or privilege, or any institution or corporation, having 
any banking power or privilege whatever, except as provided in 
this article. 

(5.) The legislature may submit to the voters at any general 
election, the question of M bank or no bank," and if at any such 
election a number of votes equal to a majority of all the votes 
cast at such election on that subject shall be in favor of banks, 
then the legislature shall have power [to grant bank charters, or] f 
to pass a general banking law, with such restrictions and under 
such regulations as they may deem expedient and proper for the 
security of the bill holders. Provided, that no such [grant or] \ 
law shall have any force or effect until the same shall have been 
submitted to a vote of the electors of the state at some general 
election, and been approved by a majority of the votes cast on 
that subject at such election. 

* " An act authorizing the city of Kenosha to borrow money and issn9 
bonds or scrip therefore void for want of any limitation upon *the amount 
of such indebtedness. " (Wis. Reports, vol. xxvi., p 23.) 

t Repealed by the amendment to article IV. 



142 Constitution of Wisconsin. 

The amendment which constitutes article IV, sections 
81 and 32, of this constitution, annuls so much of these 
two sections as allow special laws or charters to banks. 
All banking laws must be general. 

Practically, the system of state banks established under 
this section to issue bank bills, was annulled by the 
United States when congress established the system of 
national banks, in 1863. 

The United States does not prohibit state banks, and 
such banks could lawfully be organized in this state 
now, under the general banking law; but the United 
States does tax the circulation of all state banks ten per 
cent., so that they are no longer profitable to carry on; 
and, therefore, there are no longer any banks in this 
state or any other state of our union which issue bank 
bills under state laws. 

The office of bank comptroller, which was one of the 
administrative offices of the state, was abolished in 1869; 
and the state treasurer attends to what little business 
still remains to be done in winding up the affairs of the 
old state banks. 

The power to issue bank bills needs to be carefully 
guarded. Bank bills circulate as money, and are con- 
tinually passing from hand to hand. Very few people 
can have the information by which they can tell which 
are good and which are bad among a great number of 
banks situated in many states of the union. It was, 
therefore, right for the state to regulate the whole mat- 
ter of banking, and throw around it such restrictions as 
would make bank bills always good, and convertible into 
gold and silver. 

This was a subject on which there were so many opin- 



Constitution of Wisconsin, 143 

ions, and one of such importance, that the convention 
which framed the constitution did not attempt to settle 
it, but left it for the people at the general election in 

1851, when it was decided in favor of having banks. A 
general banking law was passed by the next legislature, 
and submitted to the people at the general election in 

1852, and approved by them. Several amendments 
have since been made, and each was voted on by the 
people. Several special charters have also been granted 
to particular banks, which have been approved of by a 
vote of the people. 

Happily the United States has now taken the whole 
matter of the currency into its own handaw We now 
have a national currency, composed of the United States 
notes, and the notes of the national banks chartered by 
congress. These are guaranteed by the United States, 
so that every one who takes one of these bills may be 
sure that his money is as good as the United States it- 
self. The only banks in this state which now issue bills 
are national banks. But there are many corporations 
still in existence with banking powers in every respect, 
except that of issuing bills. 



i44 



Constitution of Wisconsin. 



ARTICLE XII. 



AMENDMENTS. 



This constitution is subject to the United States con- 
stitution, and to the laws, treaties and judicial decis- 
ions of the United States, so far as that constitution 
gives the federal government power over a state ; and, 
therefore, all amendments made to this constitution 
must be made subject to the same paramount author- 
ity of the United States. 



Amendments 
may be made, 



1. By the legisla- 
ture, 



2. By convention, 



By two successive legisla- 
tures, - 
And a vote of the people, - 

Proposed by legislature, - 
CaLed by vote of the peo- 
ple, - 
Arranged for by legislature, 
Elected by vote of the peo- 
ple, - - 



Sec. 



SECTION I. 



Any amendment or amendments to this constitution may be 
proposed in either house of the legislature and if the same 
shall be agreed to by a majority of the members elected to each 
otthe two houses, such proposed amendment or amendments shall 
be entered on their journals with the yeas and nays taken 
thereon, and referred to the legislature to be chosen at the 
next general election, and shall be published for three months 
previous to the time of holding such election. And if in the 
legislature so next chosen, such proposed amendment or amend- 
ments shall be agreed to by a majority of all the members 
elected to each house, then it shall be the duty of the legislature 
to submit such proposed amendment or amendments to the peo- 
ple, in such manner and at such time as the legislature shal] 
prescribe, and if the people shall approve an of ratify such 
amendment or amendments by a majority of the electors vot 
ing thereon, such amendment or amendments shall become part 
of the constitution. Provided, That if more than one amend- 
ment be submitted, they shall be submitted in such manner 
that the people may vote for or against such amendments sep- 
arately. 



Constitution of Wisconsin, 145 

The process of amending the constitution by the leg- 
lature is as follows : 

1. An amendment may be proposed in either house. 

2. The vote must be taken by yeas and nays. 

3. The proposed amendment mu:t be agreed to by a 
majority of all the members elected to each house. 

4. It must be published for three months before the 
next general election. 

5. It must be agreed to by a majority of all the mem- 
bers of each house in the next legislature. 

6. It must be submitted to the people. 

7. It must have a majority of all votes cast on that 
subject. 

Ample opportunity is thus given for discussion, and 
it is not likely that a very unwise measure could run 
the gauntlet of all the criticism in the legislature and in 
the newspapers; and certainly no amendment can be 
passed in this way against the wishes of the people. 

It is not necessary that a proposed amendment should 
have a majority of all the votes cast at that election; 
but only that it shall have a majority of all cast on that 
subject. 

SECTION II. 

If at any time a majority of the senate and assembly shall 
deem it necessary to call a convention to revise or change this 
constitution, they shall recommend to the electors to vote for or 
against a convention at the next election for members of the 
legislature; and if it shall appear that a majority of the electors 
voting thereon have voted for a convention, the legislature shall 
at its next session provide for calling such convention. 

It may well happen that the people of the state shall 
become dissatisfied with the constitution, and wish to 
have it revised or changed entirely for a new one. In 
J 



146 Constitution of Wisconsin. 

this case it is better to have a constitutional convention 
called for that special purpose, than to take up the time 
of the legislature with it. The process of calling a con- 
vention to revise or change the constitution is as follows: 

1. The legislature may propose a convention, by a 
joint resolution. 

2. The people vote on it at the next general election. 

3. If a majority of all the votes cast on that sitbject 
are for a convention, the next legislature provides for 
calling it. 

4. This convention will be elected by the people at such 
times and in such a way as the legislature may provide. 

5. The convention need not submit its action to the 
people. A constitution made by such a convention is 
binding without a vote of the people; for the people 
have delegated their sovereign power to the members of 
the convention. But if the legislature in their call of 
the convention, have prescribed that the constitution 
shall be submitted to a vote of the people, then the con- 
vention was elected, with that limited power of propos- 
ing a new or revised constitution, but without the power 
of making it. In that case, a vote of the people is nec- 
essary, or, if the convention elected with full powers, 
think best, nevertheless, to submit their work to the 
people, they have a right so to do; and in that case the 
new or revised constitution is not binding until ratified 
by the people's vote. 

No constitutional convention has yet been called under 
this section. The amendments that have been made thus 
far, have all been made in the way prescribed in the 

Previous Rflfltinfl 



Constitution of Wisconsin. 147 

ARTICLE XIII. 

MISCELLANEOUS PROVISIONS. 

SECTION I. 

1 The political year for the state of Wisconsin shall commence 
on the first Monday in January in each year, 2 and the general 
election shall be holden on the Tuesday succeeding the first 
Monday in November in each year. 

1 All state officers come into office upon the the first 
Monday in January, unless they are appointed or elected 
to fill a vacancy. 

2 At the general election there are chosen, in the even 
years, representatives in congress, state senators in 
the odd numbered districts, members of the assembly, 
and most of the county officers. In the leap years all 
the above named officers are chosen and in addition to 
them electors for president and vice president of the 
United States. In the odd years there are chosen, the 
governor, lieutenant governor, and all the administra- 
tive officers of the state, the senators in the even num- 
bered districts, members of the assembly, and a few 
county officers. 

SECTION It 

! Any inhabitant of this state who may hereafter be engaged, 
either directly or indirectly, in a duel, either as principal or 
accessory, shall forever be disqualified as an elector, 2 and from 
holding any office under the constitution and laws of this state, 
3 and may be punished in such other manner as shall be pre- 
scribed by law. 

l A person who has been engaged in a duel is dis- 
qualified as an elector by that fact. It is not necessary 
that he should be convicted of the offense in a court of 
justice. He can be challenged at the polls and put upon 



148 Constitution of Wisconsin. 

his oath by the inspector of election. If he swears his 
vote in falsely, he is liable to be tried for perjury, and 
sent to the state's prison. He is also guilty of a mis- 
demeanor for offering to vote, and may be punished for 
that by fine and a short imprisonment. 

3 Should such a person be elected or appointed to an 
office, his place could be contested and he be thrown 
out of office on a writ of quo warranto from some court. 

3 Duelling is punished with imprisonment in the state 
prison, and if any one is killed in a duel it is considered 
as murder in the second degree and punished accord- 
ingly. 

SECTION III. 

1 No member of congress, nor any person holding any office 
of profit or trust under the United States, (postmasters excepted) 
2 or under any foreign power ; 3 no person convicted of any in- 
famous crime in any court within the United States, and 4 no 
person "being a defaulter to the United States, or to this state, or 
to any county or town therein, or to any state or territory within 
the United States, shall be eligible to any office of trust, profit 
or honor in this state. 

This section prohibits different classes of persons from 
holding office in the state, for very different reasons. 

1 Members of congress and officers of the United 
States, are prohibited from holding office in this state 
while they are congressmen or federal office holders, be- 
cause their duty to the general government would be 
likely to interfere with their duties to the state. Mem- 
bers of congress are not United States officers in the 
strict legal sense of the word, and therefore they are 
named separately. 

Postmasters are excepted; they can hold office under 
the state, but they cannot be members of the legisla- 
ture. (IV, 13.) 



Constitution of Wisconsin. 149 

2 Persons holding office under any foreign power are 
prohibited from holding office here, because they would 
not be likely to serve two separate governments with loy- 
alty; and cases might easily arise in which the interests 
of the two governments, and the duties of the two 
offices would be opposite. 

Therefore, officers of foreign powers even when they 
are our own citizens, as consuls frequently are, are j:>ro- 
hibited from holding office in Wisconsin. 

3 No person convicted of an infamous crime anywhere 
in the United States can hold office in Wisconsin, be- 
cause he has shown that he is not worthy of trust or 
honor; and the state would disgrace itself by putting a 
convicted criminal into a place of honor or trust. The 
person must have been convicted of the crime in some 
court; for the law presumes every man innocent till he 
is proved to be guilty. 

4 No defaulter to any branch of our government any- 
where in the United States caii hold office, and for the 
same reasons. 

SECTION IV. 

It shall be the duty of the legislature to provide a great seal 
for the state, which shall be kept by the secretary of state ; and 
all official acts of the governor, his approbation of the laws ex- 
cepted, shall be thereby authenticated. 

All appointments to office, all patents for land, all par- 
dons, etc., must have not only the signature of the gov- 
ernor, but the seal of the state, because they are public 
acts, done by the governor as the executive of the state. 

His approbation of the laws is not an executive act, 
but a legislative one, and, therefore, does not need the 
seal of the state. 



15° Constitution of Wisconsin. 

SECTION V. 

All persons residing upon Indian lands within any county of 
the state, and qualified to exercise the right of suffrage under this 
constitution, shall he entitled to vote at the polls which may be 
held nearest their residence, for state, United States or county offi- 
cers. Provided, that no person shall vote for county officers out 
of the county in which he resides. 

The Indian lands are not organized into towns, and, 
therefore, persons living on them are not in any voting 
precinct. But it would not be fair to deprive them of a 
vote for other than town officers, as they would be if 
the rule had no exception, that every elector must vote 
in the town, village or ward where he resides. There- 
fore, such qualified electors may vote at the nearest polls 
for presidential electors, for congressmen and for state 
officers, and also for county officers, if they live in the 
county where they vote. 

SECTION VI. 

The elective officers of the legislature, other than the presid- 
ing officers, shall be a chief clerk and a sergeant-at-arms, to be 
elected by each house. 

The lieutenant governor is president of the senate. 
When he does not preside, for any reason, the senate 
elects a president from its own members. The assembly 
elects a speaker from its own members. The chief clerk 
and the sergeant-at-arms of each house are elected by 
each house, but are not members and have no vote. The 
other officers and attendants are appointed. The chief 
clerk appoints his own assistants and the sergeant-at- 
arms appoints the postmaster, doorkeepers and firemen. 
The messengers are appointed by the speaker. The 
elections are all vive voce, and the votes of each mem- 
ber are entered on the journal. (IV, 30) 



Constitution of Wisconsin. 15 r 



SECTION VII 

No county with an area of nine hundred square miles or I 
shall he divided or have any part stricken therefrom, without 
submitting the question to a vote of the people of the county, 
nor unless' a majority of all the legal voters of the county voting 
on the question, shall vote for the same. 

It is supposed that the area of 900 square miles or 25 
congressional townships, is small enough in ordinary 
cases, for a county. But if the people of the county 
are willing to divide the county, there is no good reason 
why they should not.* 

SECTION VIII. 

No county seat shall be removed until the point to which it is 
proposed to be removed, shall be fixed by law, and a majority of 
the voters of the county voting on the question, shall have 
voted in favor of its removal to such point. 

Until the amendment constituting sections 31 and 
3'2 of article IV w r as adopted the legislature always had 
to authorize a vote of the people of any county upon the 
the question of changing the county seat. Hereafter 
under that amendment that power is taken from the 
legislature. No special law can be passed, for locat- 

* In the case of the division of Washington county, the supreme court de 
cided that in computing the area of a county, bodies of water lying within its 
boundaries are considered parts of the county, and that Washington county 
could be divided because it then included a part of lake Michigan. (Wis. 
Reports, vol. iii. p. 200: Simmons 1 Digest, p. 132 >. 

The supreme court has decided that it is competent for the legislature to 
enlarge a county which contains less than 900 square miles, by aclding to it 
part of an adjoining county containing a larger area. so that each of them shall 
be large enough to be divisible without submitting the question to the voters ; 
and by a subsequent, act at the same session to form a new county out of ter- 
ritory taken from such adjoining counties, without submitting the question 
of such division to the voters. (Simmons' Digest, p. 13*2: Wis" Reports, vol. 
xvi, p. 343. ^ This nas in the case in the division of Chippewa and Buffalo 
counties, and the formation of Trempeleau county, in lSt>4. The legislature 
has since then several times evaded this section in the same way. "The su- 
preme court has also decided that the "voters"" meant in this section and 
the next, are all the legal voters entitled to vote at any election under article 
iii. The legislature cannot extend" or limit the suffrage for the purpose 
named in these sections. (Simmons" Digest, page 133: ^VVis. Reports, vol. 
v, p. 306, and vol. ix, p. 270.) 



152 Constitution of Wisconsin. 

ing or changing any county seat, but a general law has 
been passed which covers this whole subject. Before 
a county seat can be changed, two things must be done 
The point to which it is to be moved, must be definitely 
fixed and a majority of all the votes cast on that ques- 
tion must be for changing it to said definite point.* 

SECTION IX. 

All county officers whose election or appointment is not pro 
vided for by this constitution, shall be elected by the electors of 
the respective counties, or appointed by the boards of super- 
visors, or other county authorities, as the legislature shall direct. 
All city, town and village officers, whose election or appoint- 
ment is not provided for by this constitution, shall be elected by 
the electors of such cities, towns and villages, or of some divis- 
ion thereof, or appointed by such authorities thereof as the leg- 
islature shall designate for that purpose. All other officers 
whose election or appointment is not provided for by this con- 
stitution, and all officers whose offices may hereafter be created 
by Jaw, shall be elected by the people, or appointed, as the leg- 
islature may direct. 

Nearly all the officers named above are elected by the 
people.f 

SECTION X. 

The legislature may declare the cases in which any office shall 
be deemed vacant, and also the manner of filling the vacancy 
where no provision is made for that purpose in this constitution. 

Any office is made vacant by the death or resignation 
of the person holding it, or by his removal from the state, 

* The legislature may impose conditions precedent to the removal of a 
county seat, in addition to those imposed by the state constitution. 

"A condition that after a majority of votes have been cast (at an election 
duly held on that question} in favor of the removal of a county seat to a cer- 
tain city, it shall not be removed until said city shall place at the control of 
the county supervisors a specified sum of money, is valid. 1 ' (Wis. Reports, 
vol. xxiv., p. 49.) 

t u An office created by act of legislature may be abolished in like man- 
ner, or the term of the officer otherwise shortened by general legislation, 
after his election, in the absence of any special provision of the constitu- 
tion forbidding it. 11 (Wis. Reports, vol. xxvi.. p. 428.) 



Constitution of Wisconsin. 153 

or by his accepting an office from a foreign power, or 
from the United States. All civil officers can be re- 
moved by impeachment, and some officers can be also 
removed in a shorter way, as judges, by address, and 
most county officers by the governor. When an officer 
is so removed his office is vacant. Vacancies are filled 
in various ways. A vacancy in the office of governor is 
filled by the lieutenant governor, immediately, and if he 
also goes out of office, by the secretary of state (V, 7 and 
B). Vacancies in the judicial and administrative offices 
of the state are filled by appointment of the governor 
till the next election. Vacancies in the legislature are 
filled by special election, called as soon as possible. 
Vacancies in the office of superintendent of schools are 
filled by appointment of the state superintendent. 
Vacancies in town offices are filled by special election. 
Vacancies in district boards are filled by appointment by 
the board or by the town clerk, till the next regular 
school meeting. 



i54 



Constitution of Wisconsin. 



ARTICLE XIV. 



SCHEDULE. 



< 

m 
O 

PS 
O 

I— * 

s 

Eh 

O 
W 

O 

w 



Shall 
fect 



not Af- 



Adoption of 
Constitution, 



State Govern- 
ment Organ- ■> 

IZED, 



Private rights and claims, 

Government j Fines, - 
claims, 1 Kecognizances and bonds 

Governmental property, 



Sec. 
- 1 



Governmental ju- 
risdiction, 

Laws, 



Officers, 



Criminal prosecutions, - 
Civil suits-, - 

Statutes not conflicting 
with this constitution, - 
Common law, - 

Territorial, - 
County and town, - 



j Laid before congress, 



Voted on by the people, 9 

First election under it, 9 

Apportionment, \ Congressional, - - 10 
* l ' { Legislative, - - - 12 

Returns of election, n 

Meeting of legislature, 6 

Term of office of new officers, - ' - - - 14 
Oath of office, 15 



SECTION I. 

That no inconvenience may arise by reason of a change from 
a territorial to a permanent state government, it is declared that 
all rights, actions, prosecutions, judgments, claims and con- 
tracts, as well of individuals as of bodies corporate, shall con- 
tinue as if no such change had taken place, and all process 
which may be issued under the authority of the territory of 
Wisconsin, previous to its admission into the union of the 
United States,, shall be as valid as if isssued in the name of the 
state. 

All private rights and claims are thus secured against 
any question tRat might be raised upon the technical 
point that the state of Wisconsin is a different political 
body from the territory of Wisconsin, and that what 
had been done in the courts of the territory could not 
be recognized by the courts of the state. Such a plea 
would not have been sustained in the higher courts of the 



Constitution of Wisconsin. 155 

state,* but if raised in the lower courts it might have 
caused some unjust decisions and much inconvenience ; 
consequently, it is said in plain terms in the constitution 
itself, so that no one can mistake it. 

SECTION II. 

All laws now in torce in the territory of Wisconsin, which 
are not repugnant to this constitution, shall remain in force until 
they expire by their own limitation, or be altered or repealed by 
the legislature. 

It would not do to leave the state without a code of 
laws until the legislature had adopted one. So the laws 
of the territory with which the people were already 
provided, were by this section adopted as the laws of 
the state, subject to repeal, or amendment, or expiry by 
their own limitation, like any other laws except that 
now this constitution became the supreme law of the 
state and all statutes had to give way to it, whether they 
were made before or after its adoption. 

SECTION III. 

All fines, penalties, or forfeitures accruing to the territory of 
Wisconsin, shall inure to the use of the state. 

The state succeeds to the territory as its political 
heir, and therefore receives all fines and forfeitures that 
are due the territory. It would not be just that these 
fines should be remitted to the persons from whom they 
were due, merely because the government was changed 
in its form. (See note under section I.) 

*The supreme court has decided that a change in the form of a govern- 
ment does not extinguish its obligation or destroy private right of property 
existing at the time of such change. But when a change of government oc- 
curs, either in its form or in the person of its ruler, the new government 
succeeds to the fiscal right and is bound to fulfill the fiscal obligations of the 
former government, i. Simmons 1 Digest, page 118. See, also, Wis. Reports, 
vol. ix.rp. 41, and Wheaton's Elements of International Law, p. 63.) This 
is the universal decision of the courts of all civilized countries. 



156 Constitution of Wisconsin. 

SECTION IY. 

1 All recognizances heretofore taken, or which may be taken 
"before the change from a territorial to a permanent state govern- 
ment, shall remain valid, and shall pass to, and may be prose- 
cuted in the name of the state, and all bonds executed to the gov- 
ernor of the territory, or to any other officer or court in his or 
their official capacity, shall pass to the governor or state author- 
ity, and their successors in office, for the uses therein respec- 
tively expressed, and may be sued for and recovered accordingly ; 
2 and all the estate or property, real, personal or mixed, and all 
judgments, bonds, specialities, choses in action, and claims or 
debts of whatsoever description, of the territory of Wisconsin, 
shall inure to and vest in the state of Wisconsin, and may be sued 
for and recovered in the same manner and to the same extent, by 
the state of Wisconsin, as the same could have been by the terri- 
tory of Wisconsin. 3 All criminal prosecutions and penal actions 
which may have arisen, or which may arise before the change 
from a territorial to a state government, and which shall then be 
pending, shall be prosecuted to judgment and execution in the 
name of the state. 4 A11 offenses committed against the laws of 
the territory of Wisconsin, before the change from a territorial 
to a state government, and which shall not be prosecuted before 
such change, may be prosecuted in the name and by the author- 
ity of the state of Wisconsin, with like effect as though such 
change had not taken place ; and all penalties incurred shall re- 
main the same as if this constitution had not been adopted. 
5 All actions at law, and suits in equity, which may be pending 
in any of the courts of the territory of Wisconsin, at the time of 
the change from a territorial to a state government, may be contin- 
ued and transferred to any court of the state which shall have 
jurisdiction of the subject matter thereof. 

1 Recognizances and bonds are written pledges given 
to the state through some officer* legally authorized, that 
some particular thing shall be done or else the person 
who gives the recognizance or bond will forfeit a cer- 
tain sum of money named in the bond. A recognizance 
is given by a person charged with some offense, when 
he either pledges himself to appear at such a time and 
stand trial, or pledges himself to keep the peace. 
Bonds are given by all public officers who handle public 
money as pledges of their honesty. Bonds are also 
given by friends of such public officers for their hon- 



Constitution oj Wisconsin. 157 

esty. Bail bonds are given by friends of prisoners 
pledging themselves that they will appear and stand 
their trial. 

It would not be right that any one should escape the 
obligation of his bond merely because the form of gov- 
ernment was changed. So this section provides that all 
bonds and recognizances shall remain valid, and if any 
are forfeited they may be collected just as they would 
have been before the state government was organized. 
(See note under section I.) 

2 The state of Wisconsin is really the same political 
body, with another name and another form of govern- 
ment, as the territory of Wisconsin. x\ll property that 
belonged to the territory therefore still continued to be- 
long to the state. The things ennumerated above, are 
all the different sorts of property which the law recog- 
nizes. Real estate is land with all the buildings and 
improvements attached to it. Personal property is all 
movable property of any sort. Mixed property is that 
which is partly real and partly personal. Judgments 
are claims against any one, which have been sued out 
before a court, and which the court has ordered to be 
collected. Bonds are pledges to pay a certain sum of 
money unless something else is done. Specialties are 
securities for debt, like mortgages. C hoses in action 
are rights to something not possessed, but which can be 
recovered by law. In brief, everything that the terri- 
tory owned, or claimed, is owned or claimed by the state* 
(See note under section I.) 

3 Offenders who were being prosecuted when the 
changes of government took place, could not plead that 
the prosecutions begun by the territory could not be 



158 Constitution of Wisconsin. 

carried on by the state, and so go clear of punishment 
on a technicality. That plea is barred by this section. 

4 Nor could offenders who had not yet been prosecuted 
escape on a like plea. But ex post facto laws are un- 
lawful under the United States' constitution, as well as 
under this constitution; and therefore the penalties for 
crimes and misdemeanors committed under the territo- 
rial government, were to be such as the territorial law 
prescribed, although prosecuted by the state. 

5 Lawyers distinguish between actions at law and suits 
in equity. The distinction is practically abolished in 
this state. In common language both are called law 
suits. To save all trouble the constitution provides that 
all lawsuits going on at the time of the change in the 
power of government, shall proceed exactly as if the 
change had not been made. 

SECTION Y. 

All officers, civil and military, now holding their offices under 
the authority of the United States, or of the territory of Wiscon- 
sin, shall continue to hold and exercise their respective offices 
until they shall be superseded by the authority of the state. 

It is a general principle of law that all officers shall 
hold office until their successors are elected and qualified. 
There must be somebody in the offices, or all the m'a- 
chinery of government will be stopped. On the same 
principle this section provided that all the territorial 
officers should hold over until their successors were elect- 
ed and qualified. 

SECTION VI. 

The first session of the legislature of the state of Wisconsin 
shall commence on the first Monday in June next, ai d shall be 
held at the village of Madison which shall be and : emain the 
seat of government until otherwise provided by law. 



Constitution of Wiseon 159 

At the same time the state officers were inaugurated 
and the state government was thus organized. The 
village of Madison, now a city, is still the capital of 
Wisconsin. 

SECTION VII. 

All county.precinct and township officers shall continue to hold 
their respective offices, unless removed by competent authority, 
until the legislature shall, in conformity with the provisions 
of this constitution, provide for the holding of elections to fill 
such offices respectively. 

In some of the southern counties of the state the 
towns were then called precincts. Xo change was to be 
made in county or town officers by the transition from 
territory to state, until the legislature passed laws to 
carry into effect the provisions of the constitution. 

SECTION VIII. 

The president of this convention shall, immediately after its 
adjournment, cause a fair copy of this constitution, together with 
a copy of the act of the legislature of this territory, entitled "an 
act in relation to the formation of a state government in Wiscon- 
sin, and to change the time of holdinir the annual session cf the 
legislature," approved October 27th, 1S47, providing for the call- 
ing of this convention, and also a copy of so much of the las: 
census of this territory as exhibits the number of its inhabitants 
to be forwarded to the president of the United States, to be laid 
before the congress of the United States at its present session. 

This was clone, and congress approved of this consti- 
tution, and admitted the state to the union, May 29, 1^4^ # 
The members of congress immediately took their seats 
in the house of representatives, and when the legislature 
met it elected two senators who took their seats at the 
next session. The copy of the census was to assure con- 
gress that the new state had a large enough population 
to entitle it to two representatives in congress and four 
presidentia 1 electors that fall. 



160 Constitution of Wisconsin. 

SECTION IX 

1 This constitution shall be submitted at an election to be held 
on the second Monday in March next, for ratification or rejec- 
tion, to all white male persons* of the age of twenty-one years 
or upwards, who shall then be residents of this territory and cit- 
izens of the United States, or shall have declared their intention 
to become such in conformity with the laws of congress on the 
subject of naturalization ; and all persons having such qualifica- 
tions shall be entitled to vote for or against the adoption of this 
constitution, and for all officers first elected under it. And if 
the constitution be ratified by said electors, it shall become the 
constitution of the state of Wisconsin. On such of the ballots as 
are for the constitution, shall be written or printed the word 
"yes;" and on such as are against the constitution, the word 
" no." 2 The election shall be conducted in the manner now pre- 
scribed by law, and the returns made by the clerks of the boards 
of supervisors or county commissioners (as the case may be) to 
the governor of the territory, at any time before the tenth of 
April next. And in the event of the ratification of this constitu- 
tion, by a majority of all the votes given, it shall be the duty of 
the governor of this territory to make proclamation of the same, 
and to transmit a digest of the returns to the senate and assembly 
of the state, on the first day of their session. An election shall 
be held for governor and lieutenant governor, treasurer, attorney 
general, members of the state legislature, and members of con- 
gress, on the second Monday of May next, and no other or further 
notice of such election shall be required. 

1 A constitution framed by a convention which met the 
year before, had been rejected by a vote of the people, 
but this was accepted. 

Notice that the qualifications for voters at this election 
are not the same as those given in article III, of the 
constitution. Voters were not required to have lived a 
year in the territory. Only whites were allowed to vote. 
There was no qualification because of felony or other 
crimes named in article II, of this constitution. So it 
came about that some persons were entitled to vote at 
this election who were not entitled to vote at the next, 
and some persons were not entitled to vote at this elec- 
tion who were entitled to vote at the next. For instance, 
civilized Indians could not vote this election but did 



Constitution of Wisconsin. 161 

vote at the next, while white men who had just come 
to the territory did vote at this election but could not 
vote at the presidential election held the next fall. But 
the most of the voters remained the same. 

2 Provision is thus made for conducting the election, 
canvassing the elections and making known the result. 

SECTION X. 

Two members of congress shall also be elected on the second 
Monday of May next; and [until otherwise provided by law, the 
counties of Milwaukee v Waukesha, Jefferson, Racine, Walworth, 
Rock, and Green shall constitute the first congressional district, 
and elect one member; and the counties of Washington, She- 
boygan, Manitowoc, Calumet, Brown, Winnebago, Fond du Lac, 
Marquette, Sauk, Portage, Columbia, Dodge, Dane, Iowa, La 
Fayette, Grant, Richland, Crawford, Chippewa, St. Croix, and 
La Pointe, shall constitute the second congressional district, and 
shall elect one member.]* 

This state has now eight members of congress. The 
districts have been changed twice since this consti- 
tution was adopted, and are now eight in number, to 
correspond with the number of members. 

SECTION XI. 

l The several elections provided for in this article shall be 
conducted according to the existing laws of the territory. Pro- 
vided, that no elector shall be entitled to vote, except in the 
town, ward, or precinct where he resides. The returns of elec- 
tion, for senators and members of assembly, shall be transmitted 
to the clerk of the board of supervisors, or county commis- 
sioners, as the case may be, and the votes shall be canvassed, 
and certificates of election issued, as now provided by law. [In 
the first senatorial district, the returns of election for senator 
shall be made to the proper officer in the county of Brown ; in 
the second senatorial district, to the proper officer in the county 
of Columbia; in the third senatorial district, to the proper offi- 
cer in the county of Crawford ; in the fourth senatorial district, 
to the proper officer in the county of Fond du Lac ; and in the 
fifth senatorial district to the proper officer in the county of 
Iowa.] 2 The returns of election for state officers and members 
of congress, shall be certified and transmitted to the speaker of 
the assembly at the seat of government, in the same manner as 

*The words enclosed in brackets are obsolete by their own limitation. 
K 



1 62 Constitution of Wisconsin. 

the votes for delegates to congress are required to be certified 
and returned, by the laws of the territory of Wisconsin, to the 
secretary of said territory, and in such time that they may be 
received on the first Monday in June next ; and as soon as the 
legislature shall be organized, the speaker of the assembly and 
the president of the senate shall, in the presence of both 
houses, examine the returns, and declare who are duly elected 
to fill the several offices hereinbefore mentioned, and give to 
each of the persons elected, a certificate of his election. 

1 The manner of election was to be in the usual and 
familiar way; except that no elector could vote out of 
the election precinct in which he resided. So that per- 
sons living on Indian lands could not vote at this elec- 
tion, although under the constitution (XIII, 5) they are 
now entitled to vote at the nearest polls. 

2 The returns of the election are specially provided 
for, as this election is a state election before the state is 
organized. The returns are not now made and can- 
vassed in that way. (See notes on article V, section 3.) 

SECTION XII. 

Until there shall be a new apportionment, the senators and 
members of the assembly shall be apportioned among the several 
districts, as hereinafter mentioned, and each district shall be 
entitled to elect one senator or member of the assembly, as the 
case may be * 

This apportionment has been altered every five years 
since the constitution was adopted (IV. 3). So that the 
apportionment given in this section has been long since 
abolished. Any legislative manual for the current year 
will give the present senatorial and assembly districts. 

This section established nineteen senate districts and 
sixty-six assembly districts, while the constitution allows 
as many as thirty-three of the one, and one hundred of 
the other. The number of senators and assemblymen 
was increased at each apportionment as the state grew 

*As this apportionment is no longer in force, and would take up too 
much room, it is omitted. 



Constitution of Wisconsin. 163 

in population, till in 1862 the state legislature had the 
highest number of members possible, as the constitution 
now stands. This number is still kept up, and probably 
will be for many years to come. 

SECTION XIII. 

Such parts of the common law as are now in force in the ter- 
ritory of Wisconsin, not inconsistent with this constitution, 
shall be and continue part of the law of this state until altered 
or suspended by the legislature. 

The common law is all that body of customs, prece- 
dents and forms which have grown up in England, but 
which are not expressed in the statutes. It is the un- 
written law, as the statutes are the written law. The 
United States having been colonies of Great Britain 
adopted, as colonies, and afterwards as states, the com- 
mon law of England, as the basis of their system of 
law. Of course, unwritten law can never have the force 
of written law ; and if the two conflict the written 
law — the constitution and the statutes of the state — 
will stand, and the unwritten law — the common law — 
must give way. 

Even if this section had not been in the constitution, 
the courts would undoubtedly have decided that the 
common law is in force in this state, so far as it is not 
suspended by the constitution and statutes of the state.* 

For the common law has been accepted by the United 
States courts, and was, therefore, a part of the law gov- 
erning the territory of Wisconsin, and it would remain 
a part of the law of the state, except so far as it was ex- 

* " Both the oidinanee of 17ST. providing: for the government of the north- 
western territory, and the constitution of this state, assume and recognize 
the common law* as existing here: and that law. as it existed in England at 
the time of the American revolution, modified and amended by act? of parli- 
ament passed prior thereto, is still in force here, so far as it is applicable to 
our situation, consistent with our constitution and not repealed by our leg- 
islation. " (Simmons' Digest, p. 114; Wis. Reports, vol. xviiL p. 1471. 



164 Constitution of Wisconsin. 

pressly abrogated. But, to avoid all controversy this is 
stated in the constitution, so that no one can mistake it. 

SECTION XIV. 

The senators first elected in the even numbered senate districts, 
the governor, lieutenant governor, and other state officers first 
elected under this constitution, shall enter upon the duties of 
their respective offices on the first Monday of June next, and 
shall continue in office for one year from the first Monday of Jan- 
uary next. The senators first elected in the odd numbered senate 
districts, and the members of the assembly first elected, shall 
enter upon their duties respectively on the first Monday of June 
next, and shall continue in office until the first Monday in Jan- 
uary next. 

The members of assembly and the senators in the odd 
districts were to hold office for seven months, the rest of 
the year. The senators in the even districts and the 
state officers were to hold office for the rest of the year 
and one year more. After the first election, assembly- 
men were to be chosen every year; the state officers, 
and the senators in the even districts in the odd years; 
and the senators in the odd districts in the even years. 

SECTION XY. 

The oath of office may be administered by any judge or justice 
of the peace, until the legislature shall otherwise direct. 

The constitution directs that members of the legis- 
lature and most officers, shall take an oath of office, 
swearing that they will support the constitution of the 
United States and of the state of Wisconsin, and faith- 
fully discharge the duties of the offices to the best of their 
ability. (IV, 28.) This section provides that the oath 
may be administered by any judge or justice of the 
peace until the legislature otherwise directs. Various 
other officers are now allowed to administer the oath of 
office. 



APPENDIX. 



SUGGESTIONS TO TEACHERS. 



This text book is designed to aid in teaching the constitution 
of our state, but not to take the teacher's place. Merely hearing 
recitations committed to memory from the pages of this book or 
reading it over with the pupils, will not amount to much. Only 
-ugh teaching, by a teacher who is full of the subject to be 
taught and who understands the right methods of instruction, 
will ever accomplish much with any branch of learning, and 
dally with a study so abstract and technical as the consti. 
tution. 

I. ORAL TEACHING. 

This method can be followed in every school in which there 
are pupils above the primary grade. A few minutes each 
can easily be devoted to a general exercise upon the constitution 
of the United States or the constitution of the state of Wisconsin^ 
This is the only method by which these subjects can be success- 
fully taught, except with advanced scholars. 

1. Mattek. — What shall be taught in these general exerei- 
The object of the law requiring these constitutions to be taught 
is not to make lawyers or politicians, but intelligent citi: i 
Therefore, only such parts of the constitution should be taught 
in these general exercises as will teach the children the spirit 
and objects of our government and its general frame work. 
Bearing this in mind, any teacher can go through the constitu- 
tion and select the knowledge which is of value to voters and 
citizens, and arrange it to suit himself. For the benefit of those 



166 Appendix. 

teachers who do not care to do this, a series of questions for 
oral exercises is placed at the close of these " Suggestions to 
Teachers." These questions should not be followed blindly, but 
should be changed in their form and in their order to suit the 
needs of each school ; . some questions may be omitted and others 
inserted at the discretion of the teacher. In short, these ques- 
tions should be used as a staff, not as a crutch. 

2. Manner. — How shall the teaching be conducted in these 
general exercises ? In accordance with the nature of children. 

Each lesson should be short, because children like variety, and 
dislike long and tedious exercises. 

The teaching should be done in a lively and interesting man- 
ner, because children like vivacity and dislike dullness. 

What has already been taught should be constantly reviewed, be- 
cause children learn only by constant repetition. 

Whenever there is a question, the answer to which the chil- 
dren can reasonably be expected to know, ask it of them. Tell 
them nothing except what they cannot answer themselves. Fre- 
quently, a series of shrewd questions will lead children on from 
something they already know to something they do not know, 
but which the questions asked them lead up to. 

Much interest can sometimes be aroused among the parents as 
well as among the children by giving out questions for which 
the children are to find the answers at home from father and 
brothers. 

Some answers should be given in concert and some by indi- 
viduals, varying the method so as to secure attention, and so as 
to be certain that each pupil knows what has been taught. 

Use simple language and as many illustrations as possible. 
Children can grasp large ideas, if these are expressed in simple 
language, and are freely illustrated with examples. 

Guard against the common fault of letting pupils learn words 
instead of ideas. Vary the form of the questions so as to test 
whether the pupils have learned the meaning of the answer, or 
only a form of words for it. 



Appendix. 167 

II. TEXT BOOK TEACHING. 

This is the proper method for advanced classes, and should be 
followed wherever a class of advanced pupils can be organized, 
but not to the neglect of the oral teaching of the constitution to 
the whole school. 

1. Matter. — The matter to be taught is the whole constitution 
with as much collateral information relating to the government 
of Wisconsin as teacher and class can collect. For this consult 
the Legislative Manual and Taylor's Revised Statutes, and ques- 
tion any good lawyer, well-informed editor, or leading politician. 
This study of collateral matters will have for the class all the 
value of original investigation in the stimulus of mental activity. 
To aid in this a list of topics for collateral study is given on 
page .74. 

2. Manner. — No questions are given in this work at the foot 
of the page or at the close of each section; because such ques 
tions are so likely to be depended on by teacher and pupils. 
The best method of recitation is not by specific questions and 
answers upon each point in the lesson, but by a topical recitation 
corrected by careful cross-examinations. 

Topical recitations are the best because they train the pupil 
into the habit of telling what he knows of any subject without 
hesitation or embarrassment, and because a much fuller and 
clearer knowledge of the subject can be shown in this way. A 
topical recitation is not a repetition of the words of the lesson 
committed to memory, but it is a clear and connected statement 
of the facts and ideas of the lesson. With pupils who hav. 
been accustomed to topical recitations, a ready and complete 
recitation cannot be secured at once, and aid must be given 
occasionally by specific questions. But such pupils should be 
aided as little as possible, and should be led along to the right 
manner of reciting as soon as possible. Every recitation, to be 
of the greatest benefit to the class, should contain these three 
parts : 

First. A topical recitation by members of the class. If the 
lessons are short and the class small, it would be advisable to 



1 68 Appendix. 

have each member of the class recite the whole lesson. When 
this is not the case, it would he well to secure the attention of 
the class by requiring each pupil to be ready to take up the reci- 
tation wherever it may be left, and to go on with it. As little 
help as possible should be given to the pupil reciting, and he 
should not be interrupted by needless questions before he is 
through. A written analysis of the lesson is a good form of a 
topical recitation. With a large class it would be well to send 
a part to the blackboard to make an analysis of the lesson, while 
the rest are reciting. Or, an analysis on slates or on paper may 
be brought to the class. The analysis given in this work at the 
head of each article should not be strictly adhered to, or else the 
danger of all memorizing will beset the class, that they will fail 
to think for themselves, and will learn words and forms instead 
of ideas. It would be well to require of the class an original 
analysis of each important section. A specimen of such an 
analysis is given on page 23. 

Second. The knowledge of the subject thus shown by a topical 
recitation should be still further tested by a series of shrewd 
cross-questions. These questions should be adapted to test how 
far the pupil has learned ideas, and how far he has only learned 
words. This can be tested by putting a question in a different 
form of words from those in which the statement is made in the 
book ; but words which mean the same thing. These questions 
should also be adapted to stimulate thought, and to test the 
pupil's power of thought. This can be done by questions, the 
answers to which are not directly given in the book, but which 
can be fairly deduced from statements made there. It is well 
to leave some questions open occasionally from one recitation to 
the next for the class to investigate in the meantime. 

Third. Oral instruction should be given Jby the teacher on all 
subjects which the class should know, but which they cannot 
learn for themselves. If the teacher has seen the legislature in 
session, or has been present at a term of a circuit court, or has 
watched closely all the proceedings at an election, or has visited 
the capitol or any of the state institutions, he can give the class 
a word picture of what he has seen, which will interest and in- 



Appendix, i6g 

struct them. Some of the collateral information called for by 
the topics given on page 174, can be told by the teacher to the 
class, and some of it can be found by them under the teacher's 
guidance. 

But it should be borne in mind that it is a fact of human na- 
ture, true of both children and adults, that we remember what 
we have found out for ourselves much better than what some one 
else has found out for us, and that we are more deeply im- 
aged with what we ourselves have said than with what some 
one else has told us. The teacher should not be satisfied, there- 
fore, with talking to his class. He should fix in their minds his 
oral instruction by questioning them upon it until they can tell 
it to him understandingly : and he should not rafter two or three 
bright scholars to do all the reciting, while the rest only listen. 

In places where a debating society can be sustained by ad- 
vanced pupils and citizens, it will often be found interesting 
and profitable to organize such a society as a legislative assem- 
bly, or a "mock Legislature." To carry on such a mock legisla- 
ture with profit and interest, the forms of a real legislature should 
be somewhat simplified in details. Only one house should be 
organized. The rules of the assembly should be adopted and 
followed so far as the limitations of time and numbers will allow. 
should be taken not to spend too much time wrangling over 
points of order. The legislative manual will furnish all the in- 
formation needed to begin and carry on such a inock legislature. 
If carried on as it should be this plan will not only furnish a 
varied field for debaters, young and old, but it will help to create 
an intelligent interest in the workings of our representative gov- 
ernment. 



1 70 Appendix. 



QUESTIONS FOR ORAL TEACHING. 



These questions should be regarded as suggestive only, and 
should he varied to suit the needs of the school. Only a few 
should be taken for a lesson, and these should be made the basis 
of a great variety of collateral questions which can easily be 
invented by an ingenious teacher. Constant reviews are neces- 
sary. The teacher should on no account use a book in conduct- 
ing these oral exercises. 

1. In what town do you live (or village or city, as the case 

may be) ? 

2. In what county do you live ? 

3. Bound the county. Point it out on the map 

4. In what state do you live ? 

5. Bound Wisconsin. (See page 41.) 

6. Point it out on the map. 

7. What is Wisconsin ? (A state.) 

8. Of what country is it a part ? 

9. What composes the state of Wisconsin? (The land and the 

people who live on it.) 

10. Are you a part of the state of Wisconsin then ? 

11. Why? (Because we are people and we live in the state.) 

12. Who governs the state of Wisconsin ? (The people.) 

13. What do you call the sort of government in which the peo- 

ple govern? (A democracy.) 

14. What three kinds of government are there ? 

15. What is a monarchy ? (A country where one man governs.) 

16. What is an aristocracy? (A country where a few men rule 

all the rest.) 

17. What is a democracy ? (A country where the people gov- 

ern themselves.) 



Appendix. 17 1 

18. Which is the best government to have?* 

19. You say the people of Wisconsin govern themselves. Do 

they get together in one place and make the laws? (No; 
they choose men to make the laws for them.) 

20. And when the laws are made how are they carried out? 

(The people choose officers to carry out the laws.) 

21. You say the people choose their law-makers and officers. 

Who are the people of Wisconsin? (Every man, woman 
and child in the state.) 

22. Then are you a part of the people of Wisconsin ? 

23. Do you help to choose these law-makers and officers? 

24. Why not ? (Because we are not voters.) 

25. Who are the voters? (The men over 21 years old, who 

have lived in the state a year.)f 

26. What do the voters do? (They choose men to make the 

laws, and others to carry them out.) 

27. What body of men is it that makes the laws? 

28. Of what two houses does the legislature consist? 

29. How are assemblymen elected? 

30. For how long? 

31. What qualifications must they have? 

32. How are senators elected ? 

33. For how long? 

34. What qualifications must they have? 

35. How many assemblymen are there ? 

36. How many senators are there ? 

37. How often does the legislature meet ? 

*Here the teacher should enlarge upon the blessings of liberty, and should 
tell the children what we owe to our free institutions. Because we live in a 
free country we are safe in life and limb. No one dares kill or hurt us ; or if he 
does, he is punish er 1 for it. We can travel where we please. We can engage in 
any business we are flt for. and be respected for what we really are and do. 
Our children can go to school and have a chance to be somebody. If we 
have bad laws we have only ourselves and the rest of the people of the 
state to blame for it. If we want the laws changed we must persuade the 
re.^t of the people of the state to help us change them. 

This should be told little by little, and not merely told but taught, by con- 
stant questions and answers, and by frequent illustrations, till the children 
really understand the blessings of freedom which we enjoy. 

The children should be taught to sing patriotic songs in connection with 
the oral exercises and to understand their meaning. 

t Minor distinctions should be omitted. The teacher should warn the 
scholars that the answer given above is not quite right, but that it is near 
enough right for all practical purposes. 



172 Appendix. 

38. Where does it meet? 

39. Suppose you want to have a certain law passed, what must 

you do ? (We must get some senator to introduce it into 
the senate, or some assemblyman to introduce it into the 
assembly.) 

40. What must be done with it next ? (It must be agreed to by 

the senate or the assembly, whichever it was in which the 
bill was introduced.) 

41. What next? (It must be sent to the other house and agreed 

to by that house.) 

42. Suppose either the senate or the assembly refuses to agree to 

it, what then ? 

43. If it passes both houses, what next ? (It goes to the governor 

for his signature.) 

44. If he signs it, what then ? (It becomes a law.) 

45. If he does not sign it, what then ? (It goes back to the legis- 

lature. If two-thirds of each house vote for it, it becomes 
a law in spite of the governor.) 

46. In whom is the executive power vested ? 

47. How is the governor elected ? 

48. For how long ? 

49. What qualifications must the governor have ? 

50. If the governor dies, or resigns, or is removed from office by 

impeachment, who takes his place ? 

51. If the governor is sick or goes out of the state, what then? 

52. How is the lieutenant governor elected ? 

53. For how long ? 

54. What qualifications must he possess ? 

55. What are the administrative officers of the state ? 

56. How are they all elected ? 

57. For how long ? 

58. What qualifications must they have ? 

59. What does the secretary of state do ? (He keeps the records 

of the state.) 

60. What does the state treasurer do ? (He keeps the money and 

accounts of the state.) 
01. What does the attorney general do? (He is the lawyer for 
the state.) 



Append 173 

61. What does the superintendent of public instruction do? (He 

has charge of all the schools in the state.) 

62. What does the commissioner of immigration do ? (He in- 

vites foreigners to come here, and finds places for them 
when they come.) 

63. In whom is the judicial power vested ? (In the courts.) 

64. What are the principal courts in the state ? (The supreme 

court and the circuit courts.) 
60. What is the supreme court composed of? 
6Q. What are the circuit courts composed of? (One judge in 

each circuit.) 

67. How are all these judges elected ? 

68. For how long? 

69. What qualifications must they have? 



174 Appendix. 



TOPICS FOR COLLATERAL STUDY. 



1. The history of Wisconsin. 

2. The first constitution of the Northwest territory (given in 

the ordinance of 1787, for which see Taylor's Revised 
Statutes). 

3. The history of the present constitution. 

4. The origin of trial by jury and habeas corpus. 

5. The origin of the individual rights guaranteed in article I. 

(See any good history of England, especially Hallam's 
Constitutional History of England. See also, Blackstone's 
and Kent's commentaries.) 

6. What feudal tenures were, and the oppressions of the feudal 

lords. (See Hallam's Middle Ages and Guizot's History ot 
Civilization.) 

7. The history of religious freedom in the United States. 

8. The United States survey of land in Wisconsin, describing 

the principal meridian, townships, ranges, sections, quarter 
sections, etc., with the errors in the surveys and their 
causes. 

9. The manner of conducting an election, and of counting the 

votes and canvassing the returns. 

10. In what senate district are you ? In what assembly district ? 

In what congressional district? In what judicial circuit? 

11. The rules of parliamentary practice. (See Jefferson's Man- 

ual or Cushing's Manual.) 

12. The manner of conducting business in the legislature, es- 

pecially the meaning of the following terms, frequently 
used in the newspapers : standing committee ; special com- 
mittee ; reference to a committee : first, second and third 
readings ; suspension of the rules ; call of the house ; gen- 
eral file ; committee of the whole ; previous question ; mi- 
nority report; adjourn; lay on the table; motion to recon- 
sider; amendment. 



Appendix. 175 

13. Powers and duties of the state officer?. 

14. Manner of applying to the governor for a pardon. 

15. Powers and duties of the various county officer-. 

16. Manner of conducting an impeachment trial. 

17. Manner of conducting civil suits in the various courts. 

18. Manner of conducting criminal c 

19. The present financial condition of the state. (See the secre- 

tary of state's report, or the legislative manual.) 

20. The school system of the state. (See school code.) 

21. The present condition of the school fund. Of the university 

fund. Of the Normal school fund. 

22. The condition of your own school district the past year, in 

regard to the number of children of school age ; the num- 
ber who have attended school ; the length of school : the 
finances, etc. (See the district clerk's report to the town 
clerk.) 

23. The condition of the schools in your town or city, in the 

same respects. Compare them with other localities, 
state superintendent's report.) 

24. The various sorts of corporations organized under general 

laws : and how organized. 

25. The Indian reservations in the state. 

26. A list of the counties in the state: the date of their organi- 

zation, and any changes made in their boundaries since. 
(See Taylor's Revised Statutes.) 

27. The names and locations of the various count}- seats. 

28. The present apportionment of the state into congressional 

districts. 

29. The apportionment into senate and assembly districts. (Take 

a twenty-five cent map of the state and mark the boundaries 
of the districts by colored lines, a different color for each 
of the three apportionments : or if the school has a map of 
the state, it might be well to mark the apportionments upon 
it.) 

30. The various classes of crimes and misdemeanors, and their 

punishments. 



ib!iwiiiiiiii» f congres ^# 
recommendat1 029 827 368 8 




I hive read, with care and interest, the book 
| Exposition of the Constitution of Wisconsin," by Mr. A. 0. Whigkt. 
It seems to me to be admirably adapted to the needs of teachers and 
scholars in the common schools of Wisconsin, and a valuable work of 
, reference for all who wish a clear/and succinct treatise on our State" 
,' | Constitution. 

The analyses are thoroughly made,— the language is plain and 
— (he citation of authorities ample and correct. 

If any inaccuracies should be discovered in this first edition, 1 
they will be found to be of a minor nature. They can easily be'coi 
1 in a subsequent edition. 

Mr. Wright deserves great praise for the excellent manner in wlii 
he has executed a difficult task. I think his work will 
wide and permanent circulation in the State. 

SAMUEL FALLOWS, 
'■Uerintetident of Public Tnatr 

The provision of our present school laws which requires the Cons|itu- ! \ 
n of the Unitec tiid that of our own sta':e to be taught 

public schools, seems to me of great importance. It is clear, to 
the object can not Le well accomplished without the publication oi 
tions of those instruments, accompanied by simple, yet correct ex 
I tions of their lam I scope. 

I have read with some care a portion of the little work of Mr. Wrt; ; 
I upon the constitution q sin. It appears to me to have beer 

pared with a very correcfappreciation of the wants of our public scl. 
and to be, in general, correct in its exposition of the spirit and n 
: itig of the constitution, and well adapted to excite an interest in the study \ 
of that instrument, and to impart useful information in regard to it. 
Doubtless a severely critical examination of the work will lead to t&JI 

tion of .some errors or deficiencies, which may be corrected in fu- 
hire editions. This is the common fate of first editions of school books ! 
which the way in anynew department of instruction. But the | 

general aim and plan of the volume are so good, and its execution Lj 

much of intelligence and care, that it can hardly fail, I ] 
should think, to come into general use in the schools of Wisconsin. 

O. M. CONOVER, 

Supreme Court Report 



